[43] It was acknowledged that the civil liability of certain persons is limited under Section 134 of the Labour Act 2007. It was however pointed out that such persons - which includes arbitrators appointed under the Act - such as the second respondent - would lose the shield of immunity from personal civil liability should they ‘do something, or fail to do something, not in good faith in the performance of their functions in terms of this Act ‘. [44] It was further acknowledged that a court, in terms of Section 118, was precluded from making a costs order against a party unless that party has acted in a frivolous and vexatious manner by instituting, proceeding, with or defending those proceedings. [45] Given these pre-conditions it would thus not have been competent for the court to make any costs order against the second respondent if the second respondent had not defended these proceedings. By opposing the present proceedings now at this late stage - she had brought herself squarely within the – ambit of section 118. This move at the same time also allowed for the scrutiny of the second respondent’s actions in order to determine whether or not the second respondent actions in the arbitration where done in faith’ and whether or not ‘good she should be shielded from an adverse costs order or had lost the protection afforded by the section. [46] As, according to counsel, her conduct in the arbitration was deplorable and as she had not acted in good faith in the performance of her functions a costs order against her, de bonis propriis, was warranted. [47] The first respondent’s counsel associated himself with these submissions. In addition it was submitted on first respondent’s behalf that it should be taken into account that the first respondent now finds himself on the receiving end of the conduct’ of the second respondent The seriousness of the second ‘impugned – respondent’s misconduct could not be which entailed clear breaches of ‘gainsaid’ – the second respondent’s duties under the Labour Act and the administration of justice as a result of which a punitive costs order was clearly warranted.
[43] It was acknowledged that the civil liability of certain persons is limited under Section 134 of the Labour Act 2007. It was however pointed out that such persons - which includes arbitrators appointed under the Act - such as the second respondent - would lose the shield of immunity from personal civil liability should they ‘do something, or fail to do something, not in good faith in the performance of their functions in terms of this Act ‘. [44] It was further acknowledged that a court, in terms of Section 118, was precluded from making a costs order against a party unless that party has acted in a frivolous and vexatious manner by instituting, proceeding, with or defending those proceedings. [45] Given these pre-conditions it would thus not have been competent for the court to make any costs order against the second respondent if the second respondent had not defended these proceedings. By opposing the present proceedings now – at this late stage - she had brought herself squarely within the ambit of section 118. This move at the same time also allowed for the scrutiny of the second respondent’s actions in order to determine whether or not the second respondent actions in the arbitration where done in ‘good faith’ and whether or not she should be shielded from an adverse costs order or had lost the protection afforded by the section. [46] As, according to counsel, her conduct in the arbitration was deplorable and as she had not acted in good faith in the performance of her functions a costs order against her, de bonis propriis, was warranted. [47] The first respondent’s counsel associated himself with these submissions. In addition it was submitted on first respondent’s behalf that it should be taken into account that the first respondent now finds himself on the receiving end of the ‘impugned conduct’ of the second respondent – The seriousness of the second respondent’s misconduct could not be ‘gainsaid’ – which entailed clear breaches of the second respondent’s duties under the Labour Act and the administration of justice as a result of which a punitive costs order was clearly warranted.