Picture source: Gallo Images/Getty
By Sipho Maphumulo
Legal practitioners have a duty to protect the dignity of the courts by advancing the interests of justice, observing the law, and maintaining the ethical standards of the profession whenever they litigate.
These standards are enshrined in s 36(2) of the Legal Practice Act 28 of 2014 read in conjunction with the Code of Conduct for all Legal Practitioners, Candidate Legal Practitioners and Juristic Entities. This might sound easy to adhere to, however, there have recently been instances in which legal practitioners have found themselves in breach of these standards and have subsequently faced repercussions. Prime examples of this, are recent judgments of the Labour Court (LC) in Durban and Johannesburg in Mlondo and Others v Electrowave (Pty) Ltd [2023] 8 BLLR 813 (LC), and University of South Africa v Socikwa and Others and a related matter [2023] 8 BLLR 836 (LC). In these judgments, the courts made orders aimed at deterring legal practitioners from abusing and disregarding court processes. As it will be apparent below, the conduct of the legal practitioners in these cases played a huge role in triggering the courts to make such orders.
The applicants were employed by the respondent prior to their dismissal in February 2021. During the period of their employment, the respondent had recognised the National Union of Metalworkers of South Africa (NUMSA) as a bargaining agent. Mr Maduna was a union official while Mr Mlondo and Mr Mbewe were shop stewards. On 19 January 2021, the applicants engaged in strike action and the respondent issued ultimatums, but the applicants persisted, nevertheless. The respondent subsequently resorted to suspending the applicants pending the outcome of an investigation and a disciplinary hearing. Among the applicants’ grievances, was a job grading system and short-time that was introduced by the respondent.
On 26 January 2021, the applicants were dismissed following a disciplinary hearing outcome by an independent chairperson who found them guilty of serious misconduct for participating in unprotected strike action. Following this dismissal, the two shop stewards’ disciplinary hearing was held separately from the rest of the applicants. Mr Mbewe and Mr Mlondo’s hearing was held on 4 February 2021 wherein the chairperson also found them guilty of serious misconduct for participating in an unprotected strike and ordered that their dismissal would be an appropriate sanction.
The court was then tasked to determine whether the applicants’ dismissal was substantively and procedurally fair.
In terms of the Labour Relations Act 66 of 1995 (LRA), protected strike action carries immunity against dismissal and civil liability; while unprotected strike action does not. Considering this, participation in strike action that does not comply with the LRA (Schedule 8: Code of Good Practice: Dismissal) amounts to dismissible misconduct. The court must, however, look at all relevant circumstances of each case when determining the fairness of a dismissal.
On the issue of whether there was strike action on 19 January 2021, the applicants’ legal representative submitted that the applicants did not participate in strike action on the date in question. In support of this submission, the applicants’ legal representative argued that they had in fact held a meeting outside office hours on the said date, and they had no duty to report to work on that day.
The court dismissed this argument and found it to be disingenuous on the basis that the applicants themselves had initially pleaded that unjustified conduct by the respondent had provoked them to participate in unprotected strike action more than three times in a space of seven months, including the one in question (19 January 2021).
The court provided clarity that, for employees to successfully raise provocation as a reason for participation in strike action, the employer’s conduct must be extremely appalling and there must be a proper justification why the employees failed to comply with recommended dispute resolution procedures instead of strike action. It was held that there was no evidence to show that the respondent had acted in an unjustifiable manner to provoke the applicants to participate in strike action.
Regarding the applicants’ conduct to resort to strike action, the court referred to the Modibedi and Others v Medupi Fabrication (Pty) Ltd (2014) 35 ILJ 3171 (LC) and found that the applicants had disregarded statutory dispute resolution processes and the respondent’s attempts to resolve the disputes in an amicable manner.
In summation, the court found that the applicants’ contravention of the LRA was serious. The applicants had been informed and warned that an unprotected strike was a serious act of misconduct for which they may be disciplined; and were given an opportunity to be heard prior to their dismissal, but they had disregarded all these options.
When it came to the issue of costs, the court exercised its discretion as enshrined in s 162 of the LRA and ordered the applicant’s legal representative to pay 50% of the respondents’ legal costs, to be paid de bonis propriis on a punitive scale. This decision was triggered by the applicants’ legal representative’s conduct during trial, who, when he realised that their case had no merits, resorted to deviate from their pleadings. The court showed strong demur to deal with his inconsistency, but he persisted, nonetheless. The judge raised concerns that making up a case as the proceedings continued disturbed court processes and would not be tolerated.
The court referred to an article by Seegobin J titled ‘Restoring dignity to our courts: The duties of legal practitioners’ (www.groundup.org.za, accessed 30-9-2023). In this article, Seegobin J emphasised the role that legal practitioners must play in maintaining and restoring the dignity of our courts. Furthermore, the judge reminded legal practitioners that their role is not just to push their clients’ interests, but they have a duty to assist the court in administering justice according to law.
Accordingly, the dismissal of the applicants was found to have been both procedurally and substantively fair.
Dr Marcia Socikwa was employed by UNISA on a five-year fixed-term contract as the Vice-Principal: Operations and Facilities. UNISA did not renew the contract and discharged Dr Socikwa from her duties effective from 28 February 2021. On 28 July 2022, the Commission for Conciliation Mediation and Arbitration (CCMA) found that Dr Socikwa’s dismissal by UNISA was both procedurally and substantively unfair and ordered UNISA to compensate her R 1 271 964,72, equivalent to six months’ salary.
Aggrieved by the award, UNISA filed a review application in the Johannesburg LC. However, they failed to comply with the stipulated time frame for launching of review applications. In their failure, they did not bother to seek an indulgence from Dr Socikwa, nor did they furnish the court with valid reasons for such failure as contemplated in clauses 11.2.2 and 11.2.3 of the Practice Manual of the LC.
When the sheriff attended to UNISA’s premises to attach movable assets for the purposes of sale in execution on 9 May 2023, UNISA filed an urgent application for the stay of execution on 12 May 2023, which was strongly opposed.
The deponent to UNISA’s ‘urgent application’ founding affidavit (Professor Vuyo Peach) tried to convince the court that they had complied with the stipulated time frames, but the court found Prof Peach to have ‘deliberately meandered into amnesia as a tactic to deceive the court’.
Dr Socikwa pleaded for the dismissal of UNISA’s application with punitive costs.
The Department of Justice and Constitutional Development, Limpopo Province (the Justice Department) employed Ms Elelwane Mavhunga as a Chief Administrative Clerk at the Polokwane Magistrate Court. The Justice Department dismissed Ms Mavhunga for refusing to comply with the internal rotation policy and for allegedly making derogatory statements about the Department on social media. Aggrieved by the dismissal, Ms Mavhunga approached the General Public Service Sector Bargaining Council. The commissioner found her dismissal to be both substantively and procedurally unfair and ordered her reinstatement.
The Justice Department sought to review the award to the LC, however, they failed to comply with the stipulated time in terms of which a review application may be brought to the LC.
On 28 March 2022, Ms Mavhunga attached the Justice Department’s movable property, being four vehicles. On 10 May 2023, the sheriff attended to the premises of the Justice Department and allegedly stated that he would be removing the vehicles by no later than 15 May 2023. An urgent application for stay of execution was opposed by the National Education, Health and Allied Workers’ Union (NEHAWU).
The Justice Department persisted with the application despite failing to prove that they complied with the stipulated timeframe or reasonably justifying their lateness. Ms Mavhunga (represented by NEHAWU) invited the court to dismiss the Justice Department’s urgent application with costs on the basis that it did not comply with the Rules for the Conduct of Proceedings in the Labour Court.
Both of these applications disregarded timeframes prescribed by both s 145(1)(a) of Labour Relations Act and the Practice Manual of the LC. Sethene AJ decided to write a consolidated judgment on these two urgent applications on the basis that ‘both urgent applications were hopeless in law and facts’, and ‘urgency was self-created for reasons that are inexplicable, devoid of rationality and candour’.
The court borrowed the words of Duncan Webb where he stated that: ‘Where a hopeless case is brought with the assistance of the advocate, the advocate must either be bringing it in the knowledge that it is hopeless (and therefore assisting in an abuse), or believing that it is not hopeless (and therefore incompetent), or not caring whether it is hopeless (and therefore guilty of recklessness or gross negligence). In any of these cases the conduct of the advocate warrants action being taken by the court’ (D Webb ‘Hopeless Cases: In defence of compensating litigants at the advocate’s expense’ (1999) 30 VUWLR 295 at 299).
The court was displeased with the conduct of both applicants’ legal representatives for bringing ‘absolutely hopeless’ cases and they were reminded that: ‘Legal practitioners, as officers of the court, have the fiduciary responsibility to the court. Once legal practitioners accept either the instructions and/or briefs, their appointment by their clients connotes that they become fiduciary in relation to the litigant. In the words of Innes CJ, fiduciary duty also involves “… a solicitor to his client … ”’.
The court further held: ‘Once appointment is confirmed and accepted, the forensic skills of legal practitioners must be ignited to ensure that they protect the court from the burden of entertaining and adjudicating absolutely hopeless cases. It remains the duty of a legal practitioner to act in the best interests of his or her client. Acting in the best interest of the clients also denotes that a legal practitioner has an obligation to disclose to the client that the case sought to be pursued is either absolutely hopeless or has prospects of success.’
Considering the above reasons, both these applications were dismissed.
In deciding whether cost orders were appropriate, the court took into account the conduct of the parties and their representatives in the proceedings. In light of this, the court exercised its discretion as enshrined in s 162(3) of the LRA. Both legal practitioners were ordered not to charge any legal fees for bringing these ‘hopeless urgent applications’, or if they had already been paid to repay them within 60 days.
In closing the court agreed with Van Niekerk J in Mashishi v Mdladla and Others [2018] 7 BLLR 693 (LC) where he warned that those who appear before the courts to be aware that in future, the pursuit of hopeless cases will attract consequences.
The significance of these cases is that they remind legal practitioners to ‘act with honesty, candour and competence’, and to ‘exercise independent judgment in the conduct of the case’, and not attempt to abuse court processes or mislead the court (Seegobin J (op cit)). Legal practitioners should be aware that LCs are on a mission of building a clear and consistent list of case law, which supports the granting of cost orders against those legal practitioners who disregard court rules and processes. Judges grant these orders to protect the dignity of the law and the courts. Accordingly, legal practitioners should be honest with their client when their cases are hopeless to avoid having cost orders granted against them.
Sipho Maphumulo LLB (UKZN) is a candidate legal practitioner at Garlicke & Bousfield Inc in Umhlanga.
This article was first published in De Rebus in 2023 (Nov) DR 10.
