Lambert-Williams v Sign Company Sign writers (Pty) Ltd (JA73/98) [1999] ZALAC 33 (24 June 1999)

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[1999] ZALAC 33
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Lambert-Williams v Sign Company Sign writers (Pty) Ltd (JA73/98) [1999] ZALAC 33 (24 June 1999)

IN THE LABOUR APPEAL COURT OF SOUTH
AFRICA
Held at Johannesburg
Case no.:NH11/2/24237
Appeal case no.:JA
73/98
In
the matter between:
Nicholas
Antony Lambert-Williams
Appellant
and
Sign
Company Sign writers (Pty) Ltd
Multivision
Respondent
___________________________________________________________________________
Judgment
___________________________________________________________________________
Ngcobo AJP
[1] Mr
Lambert-Williams, the appellant, alleged in the Industrial Court that
he had been dismissed by Sign Company Sign writers (Pty)
Ltd, the
respondent, in circumstances which amounted to an unfair labour
practice. Apart from denying the alleged unfair labour practice,
the
respondent denied that it had employed the appellant. It alleged that
he had been employed by Multivision CC.
[2] In the court a quo
the parties agreed that the issue of whether the respondent was the
employer should be determined first. After
evidence on this issue was
led, the court a quo found that the respondent was not the employer.
As the disposal of this issue meant
the disposal of the dispute
between the appellant and the respondent, the application was
dismissed. The present appeal is against
the finding that the
respondent was not the employer.
[3] The record of the
appeal and the heads of argument were filed late. In its heads of
argument filed on 19 March 1999, the respondent
took the point that
the record had not been filed timeously. On 10 May 1999 the attorneys
of record for Lambert-Williams purported
to file the application for
condonation of the late filing of the record. Mr Sean Snyman of that
firm deposed to an affidavit in
support of such application. What
emerges from that affidavit is the following.
[4] Since 29 September
1997 the attorneys had written eight letters to Lambert-Williams
urging him to furnish them with funds to enable
them to pay for the
record. When no response was received from the appellant after the
fifth letter, on 20 April 1998 the attorneys
addressed the sixth
letter to him and said “Should we not hear from you within 30 days
we shall close our file”. On 5 June 1998
they wrote the seventh
letter and said “As you have not contacted the writer, we shall
close our file in 30 days”. Then on 14
July 1998 they wrote the
last letter and said “Our file in this matter is now closed”.
[5] The affidavit goes
on to say:
“
4.7
Ultimately and on or about the 11
th
of September 1998 we were telephonically contacted by the appellant,
which was the first he had contacted us since 1997, and the
appellant
then telephonically instructed us to proceed with the appeal. Based
upon an undertaking by the appellant that he would
pay the amount of
R889,20 for the record of the appeal into our trust account, we
immediately proceeded to obtain the record and
pay for the same;...
4.9 Since such date, we have not yet again been
contacted by the appellant and have been unable to procure further
particulars from
him with regard to why it took him almost a year to
contact us and furnish us with the instructions to proceed with the
appeal, notwithstanding
the correspondence aforesaid. We are
therefore unable to add or submit anything in addition to the
abovementioned submission”.
[6] It is apparent from
the affidavit of Snyman that the appellant did not comply with his
undertaking to pay the said sum of R889,20
into their trust account
as he had undertaken to do. Instead the attorneys paid for the
record. It is also apparent from the affidavit
that the attorneys
were not given any instructions to make the application for the
condonation of the late filing of the record.
The appellant was not
told that the appeal was coming up before court on 3 June 1999.
[7] The contents of the
affidavit of Snyman raise a question as to whether the attorneys had
the authority to proceed with the appeal
and to make the application
for condonation of the late filing of the record.
[8] The appellant
disappeared for a period of one year. Numerous letters were written
to him and these letters did not evoke any response
from him. As a
result the attorneys closed their file. One year later he
“telephonically contacted” his attorneys and “telephonically
instructed” them to proceed with the appeal, undertaking to pay the
costs of the record. Thereafter he disappeared again without
keeping
his promise to pay for the record. He has never been heard of since
those telephonic instructions. There is no explanation
for his
disappearance either before or after the alleged telephonic contact.
The need to make the application for condonation for
the late filing
of the record was never discussed with him. When he last contacted
his attorneys, the appeal had not yet been set
down. He is,
therefore, not even aware of the fact that the appeal came before
court on 3 June 1999.
[9] Having regard to
the disappearance of the appellant and his failure to comply with his
undertaking to pay for the record, it cannot
be suggested that the
attorneys had the authority either to proceed with the appeal or to
make the application for the condonation
of the late filing of the
record. It is plain from the affidavit of Snyman that the attorneys
had no instructions to make the purported
application for the
condonation of the late filing of the record. There is, therefore, no
application for condonation of the late
filing of the record.
[10] In the result the
appeal must be struck off the roll.
[11] That
is not the end of the matter. The respondent is seeking an order for
costs
de bonis propriis
against the attorneys.
[12]
In
Blou v Lampert & Chipkin,
N.N.O., and Others
1973 (1) SA 1
(A), the court considered the liability of the trustees of an
insolvent estate for costs
de bonis
propriis
where the trustees had
purported to bring an application on behalf of the insolvent estate
when they had no authority to do so. Holmes
JA had the following to
say at page 14B - 15A:
“
There
are several judicial decisions dealing with the circumstances in
which a party litigating in a representative capacity will
be
condemned to pay costs
de bonis
propriis
. (I rather think that there is something to be said for
using the modern expressions of “out of his own pocket”, or “uit
eie
beurs”). For example, it has been held that such an order will
be made where he acted in bad faith, or negligently, or unreasonably.
See, for example,
Re Estate Potgieter
,
1908 T.S. 982
at p.
1002, and the cases collected in a recent compilation, Cilliers on
Costs
(with its engaging foreword by Mr. Justice van Winsen)
at pp. 203
et seq.
I would think that these examples are all
comprehended within the basic notion of material departure from the
responsibility of office.
Counsel for the trustees earnestly besought
us to hold that, although they may have acted wrongly, their conduct
did not fall within
the limits of judicial censure. In my view the
matter fells [sic] to be decided on a somewhat different basis. The
trustees were
held by the Court
a quo
to have instituted the
proceedings without
locus standi
to do so. See the
ratio
of
the judgement of the Court
a quo
reported in
1970 (2) S.A. 185
at pp. 200 (last line) to p. 214F. There is no appeal or cross-appeal
against that decision. This means that they had no authority
to
represent the insolvent estate in the proceedings; and that,
de
jure
, the insolvent estate was not before the Court, and did not
litigate, and cannot be ordered to pay costs. The right persons to be
mulcted in costs for the abortive application are the trustees who
purported to bring it on behalf of the estate without right or
authority to do so. This seems to me logically inescapable. It was
also the approach of the Court in
Ashley v. S.A. Prudential Ltd.,
1929 T.P.D. 283
, to which counsel for Harlingen referred us. There
the proceedings were brought in the name of Ashley by one Matthews,
claiming to
be authorised to do so by power of attorney. It was held
that the document did not confer on him the power to bring the
proceedings.
Tindall, J., said at p. 286,
in fin
., to p. 287 -
“Matthews ... should not be allowed to escape
the consequences of having sought battle in the motion Court without
having made certain
that he was fully accoutred for the fray ... I
think there must be no order on the application, and R.T. Matthews is
ordered to pay
the costs personally.”
Similarly in
Town
Council of Brakpan v Cohen and Others
,
1938 W.L.D. 146
, a petition in the name of the town council was
signed by the acting town clerk by virtue of a resolution authorising
him to apply
for an interdict against the first respondent only.
Schreiner, J., held that the acting town clerk had no authority to
bring proceedings
against the other two respondents. The learned
Judge added, at p. 149
in fin
.,
“
In
regard to the costs of these two respondents the logical course would
be to make the acting town clerk pay such costs (cf.
Ashley
v S.A. Prudential,
1929 T.P.D. 283)”.
Only the gracious consent of counsel saved the
unhappy official from that exacting fate.
See also
Toubkin,
NO., v Doenges, NO.,
1951 (3) S.A.
72
(T) at p. 75B.
It seems to me therefore that the Court
a
quo
was right in ordering the
trustees to pay costs
de bonis
propriis
.”
[13] In
my view, there is no reason both in logic and principle why the
principle enunciated in
Blou v
Lampert & Chipkin, NNO., and Others
,
supra, should not be applicable in the case of an attorney who
purports to represent a litigant when the attorney has no authority
to do so.
[14] In an attempt to
explain the conduct of his firm in acting without authority, Snyman
informed us that he feared that “he might
be dragged before the Law
Society” for abandoning his client. He informed us that he was
acting in terms of “the last instructions
from his client” to
prosecute the appeal. I am unable to understand how, if he had
withdrawn timeously as an attorney of record
and after due notice to
Mr Lambert-Williams, this would have resulted in him “being dragged
before the Law Society”. What Snyman
should have done was to advise
the appellant that it was necessary to make an application for
condonation for late filing of the
record; call upon appellant to
furnish him with an explanation for the delay in the filing of the
record in order to prepare such
application; indicate to the
appellant that if no such explanation is given, he will be compelled
to withdraw as an attorney of record
and advise the appellant of the
consequences of withdrawal as attorney of record. If such an
explanation was not forthcoming from
the appellant, the proper course
for the attorneys to have followed would be to give the appellant
notice of their withdrawal as
attorneys of record. The attorneys
chose not to follow this course but instead brought the application
for condonation without the
appellant’s authority and sought to
proceed with the appeal. In these circumstances the attorneys must
face the consequences of
acting without authority.
[15] The right person
to be mulcted for costs in the appeal and the abortive application
for condonation is the firm of attorneys
which purported to bring the
application and prosecute the appeal without right or authority to do
so. They cannot escape this.
[16] In the result the
following order is made:
a) The appeal is struck off the roll;
b) The firm of attorneys Snyman & van
Heerden is ordered to pay the respondent’s costs
de bonis propriis
.
____________________
Ngcobo AJP
I
agree
____________________
Conradie JA
I agree
____________________
Nicholson JA
Date of hearing: 3 June
1999
Date of judgement: 24
June 1999
Appearances:
For
appellant: Mr Snyman of Snyman Van Der Heever Heyns, Inc
For respondent: Mr A de
Kock of Hofmeyer Herbstein Gihwala Cluver & Walker Inc