Letters to the editor – September 2018

September 1st, 2018

PO Box 36626, Menlo Park 0102

Docex 82, Pretoria

E-mail: derebus@derebus.org.za

Fax: (012) 362 0969

Letters are not published under noms de plume. However, letters from practising attorneys who make their identities and addresses known to the editor may be considered for publication anonymously.

Response to Grumpy Attorney

Dear Grumpy Attorney,

I commend you for your honest ramblings. While reading your article (‘Ramblings of a Grumpy Attorney’ 2018 (July) DR 52) I frequently yelled out ‘Yes! Thank you’ in the office, to the astonishment of my colleagues.

The truth, the brutal truth, rang strong within my very fibre and, as I was reading, I had flashbacks to some tumultuous first hand experiences that I have endured.

My greatest concern, and one that I felt you neglected to address, was the clerks of the courts. Gone are the days when legal practitioners were feared, admired, respected and idolised. We have been reduced to squabbling, begging commoners baying for the approval of the clerk behind the desk and their stamp of approval (literally and figuratively).

Your knowledge and hard work no longer allows you to be more successful in this industry, but rather your ability to grovel before the clerks.

I have been informed that my urgent matter will not be issued as they cannot deal with every urgent matter and that, to a legal practitioner, every matter is urgent. My matter was about to prescribe. I had to beg until my knees had scabs before the clerks decided they would help.

But since there are no consequences for the clerks if they do not do their jobs effectively, why would they?

I thank you for your honesty as it made me feel less alone in this exciting and yet very frustrating profession that we so greatly love. This profession is much the same as teenagers. You never know where you stand with them, but you love them anyway.

Grovelling candidate attorney, Cape Town

Long march towards an ubuntu approach to conflict resolution and reconciliation

How far is an employer expected to go towards embracing individual cultural norms and traditions in a culturally diverse workplace? Would the practice of those cultural norms strip the employer of its powers to manage discipline?

Permit me to expand on this – by way of an actual occurrence – where the dismissal of an applicant in a case before the Commission for Conciliation, Mediation and Arbitration (CCMA) was held to be unfair for assault on a fellow employee outside the workplace. What transpired was that after the assault the complainant was hospitalised and while he was recuperating there, a delegation (including the dismissed employee) visited him with the purpose to apologise and make peace and pay a token amount as a sign of genuine contriteness. This was in accordance with the African cultural norm and tradition regarding conflict resolution.

A follow-up visit to the complainant’s rooms in the hostel continued negotiations as to the amount. Fast forward to the matter being reported to the employer, which resulted in a dismissal and subsequent reinstatement order in the CCMA. Even though, it was held that employers may not be bound by cultural traditions, they cannot simply ignore the reality of their existence, especially where the cultural norms and traditions are aimed at achieving social good and are not in conflict with the Constitution. Where, the perpetrator of the misconduct showed genuine remorse and initiated the process to make amends through cultural norms and traditions, the employer would be expected to consider same earnestly in a good light. This was held, albeit obiter as opposed to ratio decidendi by Nkutha-Nkontwana J in Harmony Goldmine Company Limited v Raffee NO and Others (LC) (unreported case no JR1205/15, 8-5-2018) (Nkutha-Nkontwana J).

The judge held (at para 17) that Harmony Gold seriously misconstrued the African tradition of peace-making, by choosing to pursue individual members of that delegation whose conduct was perceived as tantamount to defeating the ends of justice through bribery and corruption. Dr Timothy Murithi in ‘Practical Peacemaking – wisdom from Africa: Reflections on Ubuntu’ (2006) 1 The Journal of Pan African Studies 25 remarked that: ‘Ubuntu societies maintained conflict resolution and reconciliation mechanisms, which also served as institutions for maintaining law and order within society’.

Saber Ahmed Jazbhay, attorney, Durban

This article was first published in De Rebus in 2018 (September) DR 4.

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