Moksha Naidoo BA (Wits) LLB (UKZN) is an advocate at the Johannesburg Bar.

Mashishi v Madlala and Others (LC) (unreported case no JR2644/11, 15-3-2018) (Van Niekerk J)

One of the primary objectives of the Labour Relations Act 66 of 1995 (LRA) is to create an expeditious dispute resolution system. However, the vast number of cases being referred to the Labour Court puts pressure on the court to the extent that a backlog ensues, which in turn defeats this objective. Matters where applicants have no real prospects of success unduly contribute to this backlog and the court, in this judgment sought to put a stop to this growing and burdensome trend.

The court was faced with a condonation application where the applicant was five years late in lodging his review application. While the reasons for the applicant’s delay and merits of his review application are not material for the purpose of this article, the court found that the applicant did not have a plausible reason for his delay. Consequentially the issue of prospects of success became irrelevant, suffice to say the applicant challenged the finding that he was guilty of seven counts of misconduct, which counts he pleaded guilty to at his internal hearing.

Normally a matter of this nature would have been dealt with by way of an ex tempore judgment, however, to address the disturbing tendency referred to above, Van Niekerk J held: ‘The only reason that I have prepared a written judgment is to draw the attention of practitioners and others with right of appearance in this court to the abuse of this court’s process that continues, notwithstanding prior indications from the Bench that given the court’s limited resources and the backlogs that have built up (especially in relation to the motion rolls), consideration would be given to making punitive costs orders and orders to the effect that practitioners forfeit their fees where that is appropriate.’

Elaborating on the principle that as an officer of the court, a legal representative’s duty and responsibility is first and foremost to the court and the interest of justice, the court stated:

‘Judge Owen Rogers recently suggested that it is improper for counsel to act for a client in respect of [a] claim or defence which is hopeless in law or on the facts. … By this he means that counsel must be able to formulate a coherent argument comprising a series of logical propositions which have a reasonable foundation in law or on the facts and which, if they are all accepted by the court, will result in a favourable outcome, even if counsel believes that one or more of the essential links are likely to fail. But counsel acts improperly when she is “quite satisfied” that one or more of them will fail. In particular, there is an ethical obligation on counsel, to ensure that only “genuine and arguable” cases are ventilated, and that this be achieved without delay.

What is significant about Judge Rogers’ argument is his acknowledgement that there is no express or even implied prohibition against pursuing the hopeless case to be found in the General Council of the Bar’s Uniform Rules of Professional Conduct. The obligation not to accept or pursue a hopeless case is located outside of the formal rules of professional conduct, in sources that include the court’s power to stay those proceedings that amount to an abuse of process, the court’s right to mulct a practitioner in costs (something that necessarily implies impropriety), and the founding values of the Constitution; in particular, effective, efficient and expeditious adjudication.’

The court went on to say:

‘In the Labour Court, the right of appearance extends beyond advocates and attorneys to officials of trade unions and employers’ organisations. In my view, in respect of all those who enjoy right of appearance in the Labour Court, the same obligation (i.e. to refrain from pursuing a hopeless case) applies. The same penalties, in the form of punitive costs orders and orders that practitioners forfeit their fees) ought also to apply. The obligation owed by those who have the privilege of right of appearance in this court requires them in return to respect this institution and the statutory purposes of expeditious dispute resolution that it is statutorily mandated to uphold. Section 162, which regulates orders for costs in this court, confers a discretion to make orders for costs, based on the requirements of the law and fairness. Those requirements, as I have stated above, compel practitioners and other representatives to refrain from referring hopeless cases to this court, and to place the interests of justice and of the court before the parochial interests of their clients and what might be seen to be a principle of partisanship that requires representatives to advance their clients’ partisan interests with the maximum zeal permitted by law; and the principle of non-accountability, which insists that a representative is not morally responsible for either the ends pursued by the client or the means of pursuing those ends.’

Returning to the matter at hand, Van Niekerk J found that the application before court was a hopeless one where the representative was, in terms of his professional ethics and conduct, obliged not to file the review application irrespective of the client’s instructions.

However, in the absence of affording the representative an opportunity to offer reasons why he should not forfeit his fees in this case, the court did not pursue with such an order.

Yet, in closing the court did sound the following warning:

‘Those who appear in this court should be aware that in future, the pursuit of the hopeless case will attract consequences.’

This article was first published in De Rebus in 2018 (June) DR 42.