In the recent Labour Court case of University of South Africa v Socikwa and Others (J 675/23; J 680/23) [2023] ZALCJHB 172, Acting Judge Sethene handed down a scathing judgment on 7 June 2023 in terms of which the Applicant’s legal practitioners were barred from charging any legal costs flowing from the application and the legal representatives were ordered to reimburse the Applicant within sixty (60) days of the order.
UNISA Matter
Socikwa was employed by UNISA on a five-year term contract from 1 January 2016 to 31 December 2020 as the Vice-Principal: Operations and Facilities. She had a legitimate expectation that her contract would be renewed. However. on 27 January 2021, the UNISA council elected not to renew it. and on 1 February 2021, UNISA delivered a letter to Socikwa stating that her contract will not be renewed and she was discharged from her duties as of 28 February 2021.
On 28 July 2022, the Arbitrator in the CCMA found that Socikwa’s dismissal was substantially and procedurally unfair and awarded her compensation equivalent to six months’ salary. UNISA then brought an application on 26 October 2022 to review the arbitrator’s finding, however, due to its own delay, the review application was archived;
On 9 May 2023, Socikwa instructed the Sheriff to attend at UNISA premises to attach movable assets for a sale in execution and 3 days later, UNISA brought an urgent application to stay the sale in execution which Socikwa opposed.
Department of Justice and Constitutional Development Limpopo Province (the Department) Matter
Mavhungwa was employed by the Department as the Chief Administration Clerk at Polokwane’s Magistrate Court, however she was dismissed by the Department for making derogatory statements against the Court Manager on Facebook after the Department enforced a rotation policy on her and she refused to rotate for the reason that rotating would be a disadvantage to her studies.
On 6 September 2021, the arbitrator in the Bargaining Council found that Mavhungwa’s dismissal was substantially and procedurally unfair. in light of the award, on 28 March 2022, Machungwa attached four vehicles of the Department. On11 July 2022, the Department brought an application to review the arbitration award. In the same month, the Department brought an urgent application to stay the execution of the award. The review application was deemed to be withdrawn and alternatively archived due to the Department’s failure to take steps to prosecute the application.
The judgment in respect of the urgent applications to stay the writs pending the outcome of the review applications were consolidated before the Labour Court.
The legal issue to be determined by the Court was whether the applications were in fact urgent in the particular circumstances.
The applications were not found to be urgent as the urgency in both applications was triggered by the operation of the sale in execution on their movable property. Furthermore, the Applicants had failed to comply with the prescribed time frames set out in section 145 of the Labour Relations Act, Act 66 of 1995, as amended (the LRA) in their initial review applications. The court found that the Applicants’ conduct was a contravention of the rule of law and a travesty to the citizens of the Republic. Furthermore, as the Applicants perform public functions, they ought to be extra careful and comply with the Rules of Court and the Practice Manual in line with their constitutional obligations.
This Court held that if a legal practitioner pursues a hopeless case, that practitioner may be liable for the costs of such pursuit. The opening line of this judgment provides as follows:
“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 negligence). In any of these cases the conduct of the Advocate warrants action being taken by the Court.
The Court found that legal practitioners as officers of the Court have a fiduciary responsibility to the Court and also have a duty to ensure that they protect the Court from the burden of entertaining and adjudicating absolutely hopeless cases. Moreover, a legal practitioner always has a duty to disclose to their client whether a case has merit or not.
The Court found that the legal representatives of the Applicant in this case who assisted in the bringing of the absolutely hopeless case to Court when they reasonably ought to have known that the applications were not urgent and there were no reviews pending before the Court. As a result, the Court ordered inter alia the following:
J675/23
the application by UNISA is struck off the roll for want of urgency;
UNISA’s legal practitioner in this application are ordered not to charge any fee for legal services rendered;
if they have already been paid, the legal practitioners are to reimburse UNISA within sixty (60) days of the granting of the order;
UNISA was ordered to pay Dr Socikwa’s costs on an attorney and client scale; and
the Legal Practice Council was ordered to investigate the conduct of Prof Peach .
J680/23
the application by the Department of Justice is struck off the roll for want of urgency;
the Department of Justice ‘s legal practitioner in this application are ordered not to charge any fee for legal services rendered. If she has already been paid, the legal practitioner is ordered to reimburse the Department of Justice within sixty (60) days of the granting of the order;
the Department of Justice was ordered to pay NEHAWU’s costs on an attorney and client scale; and
the State Attorney was ordered to investigate the conduct of the instructing attorney who acted on behalf of the Department of Justice to establish if section 45(c) of the PFMA was contravened or not.
Each case must obviously be assessed on its own merits and on a case-by-case basis. This case should be a stark warning to all legal practitioners that one must properly assess the substantive merits of a case before simply launching an application if the prospects of success are hopeless.
