By Gabriel Rybko, Kylie Slambert and Darryl Bernstein
This opinion piece does not intend to comment on the substantive employment law aspects of the case, but rather on the views of the court in relation to the conduct of the legal advisers. The matter of University of South Africa v Socikwa and Others (7 June 2023) involved a labour dispute, with the salient portions of the judgment relating to legal practice, and a lawyer's engagement in a “hopeless case”.
The facts were that the respondent was employed by the University of South Africa (Unisa) for five years, and the employment contract was not renewed, even though the respondent had a legitimate expectation that it would be. The respondent found success in the South African employment tribunal, the Commission for Conciliation, Mediation and Arbitration (CCMA), where it was found that the dismissal was procedurally and substantively unfair and that the respondent was owed six months’ salary, or just over R1 200 000.
Unisa then sought legal advice on how to appeal the matter. Twelve weeks after the arbitration award was handed down, Unisa filed a review application in the Labour Court. Unisa's legal practitioners undertook no further action for six months. It was only when the Sheriff attached property at Unisa's premises that Unisa's legal practitioners were ignited into action, and they launched an urgent application to stay the writ of execution pending the outcome of the review. The review, which lay dormant for six months, had already been deemed withdrawn three months earlier.
In the hearing for the urgent application, the judge asked counsel for Unisa whether there was a pending review before the court. The counsel responded by saying that they only realised that the review had been deemed withdrawn the previous night at around 11pm. The judge graciously allowed counsel an indulgence to receive further instructions from the instructing attorneys. Upon resuming the proceedings, more glaring issues appeared to the judge. The deponent to Unisa's founding affidavit, a professor at Unisa, who also happened to be the Executive Director of Unisa's legal services department, neglected to mention the fact that the review application had been automatically withdrawn due to the effluxion of time. The Court saw this as the professor electing to be a “stranger to the truth”.
Following this, it became clear that Unisa's legal practitioner's ineptitude had resulted in the lapsing of the time frames prescribed by the Labour Relations Act, the Rules of the Labour Court, and the Labour Court Practice Manual, and the same practitioners knowingly continued their attempts to frustrate the attachment order even when their case was obviously doomed.
The Court stated that Unisa's attorneys had forged on with a hopeless urgent application to stay the writ of execution. The Court also referred the professor to the Legal Practice Council.
The Court concluded with an articulate assessment of legal practitioners who pursue hopeless cases - who breach their fiduciary duty to their clients, and their duty to protect the court from the burden of adjudicating hopeless cases. Legal practitioners who are party to doomed matters are under an obligation to disclose to the client that their case has little to no prospects of success. The Court struck the matter off the roll for want of urgency and handed down a unique costs order; Unisa's counsel and attorneys were ordered not to charge any fees for the legal services they had rendered, and to reimburse any fees that had already been paid. Unisa was still, however, punished with a costs order on an attorney and client scale.
Ultimately, this joins a growing body of cases wherein our courts have commented on the misconduct of legal practitioners. This case may also lay a basis for courts to punish the pursuit of hopeless cases, or the adoption of legal strategies which are intended to impede and frustrate an inevitably undesirable outcome of a dispute.
* Rybko is a Candidate Attorney, Slambert an Associate and both are overseen by Bernstein, Partner and Head of Dispute Resolution at Baker McKenzie in Johannesburg
PERSONAL FINANCE