One of the most frequent questions Respondents ask me as a Legal Advisor is, “Can’t I claim my costs from the Applicant?”. And my response to that is usually a cautious, “It will depend.”, usually leaving the Respondent bewildered and confused.


Section 138 (10) of the Labour Relations Act provides that,

 “The commissioner may make an order for the payment of costs according to the requirements of law and fairness in accordance with the rules made by the commission in terms of Section 115 (2A) (j) and having regard to:

  • Any code of practice issued by NEDLAC in terms of section 203; or
  • Any relevant guideline issued by the Commission.”


It can therefore be noted that the issue of costs is at the discretion of the commissioner, having considered the principles of law (legal requirements as to costs) and fairness (what is fair in the circumstances of each case). This is referred to as the general/basic rule. In the case of Weiner v Broekhuysen 2001 (2) SA 715 (C) the court defined costs as “a sum of money a court orders one party to pay to the other party to refund the latter for expenses incurred in the arbitration proceedings.”


What is clear, is that costs can only be ordered at the arbitration stage of proceedings, this means that costs cannot be ordered at conciliation, and at a con/arb process, costs can only be ordered once the commissioner issues the Certificate of Non-Resolution and states that the matter is to proceed to arbitration. The award of costs is not a “hard and fast rule” at the end of each case, as each case should be judged on its own merits.


A party awarded costs may claim and be awarded, reasonable disbursements and legal fees.


Disbursements are the actual expenses incurred by a party in conducting his/her arbitration such as photocopying. If a commissioner awards disbursement, they must specify the items and the amounts. Disbursements are awarded to a party that is unrepresented or is represented by an employee, a director or member of closed corporation, an office-bearer or official of a trade union or employers’ organization or a trade union representative. Legal representatives are excluded from claiming disbursements.

Legal fees are determined in terms of CCMA rule 39 at a flat rate of R6000 for the first day and R4000 for each additional day of the arbitration. However, if legal fees are awarded, no disbursements can be awarded. Legal fees can only be claimed by a legal practitioner.


Article by Rushin Muller

CEO Dispute Resolution Official – Durban