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[2014] ZALCJHB 167
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Molepo v Passenger Rail Authority of South Africa (JR 3010/12) [2014] ZALCJHB 167; (2014) 35 ILJ 1605 (LC) (17 January 2014)
REPUBLIC OF SOUTH
AFRICA
THE LABOUR COURT
OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Reportable
Case No: JR 3010/12
Date: 17 January
2014
In the matter
between:
NSIZWA CROMET
MOLEPO
...................................................................................
Applicant
and
PASSENGER RAIL
AUTHORITY OF SOUTH
AFRICA
.....................................
Respondent
Decided in
Chambers: 17 January 2014
Summary:
Application for leave to appeal— raising grounds of appeal that
misstate exchanges in court;
Duty of the court
to guard its prestige and dignity on the face of false statements on
what transpired in court
Costs
- conduct of attorneys—costs
de bonis proriis
JUDGMENT: LEAVE
TO APPEAL
MOOKI, AJ
[1] This judgement
concerns the application for leave to appeal an order by the court
that was handed down on 11 July 2013. The
reasons for the order were
delivered on 15 August 2013. I refer to the parties as in the main
application. The main application
was an application by Mr Molepo to
make an arbitration award made in his favour an order of court (“the
enforcement application”).
[2] PRASA filed its
notice of application for leave to appeal and setting out the grounds
upon which leave to appeal is sought on
25 July 2013. This was before
the reasons for the order were delivered. PRASA requested the reasons
for the order it appears, either
on 25 July 2013 or on 31 July 2013.
[3] I first set out
the grounds upon which the application is made and as such grounds
are formulated in the notice. I do so because
of the view that I take
of the application.
‘
GROUNDS
FOR LEAVE TO APPEAL
“
1
The parties had by agreement consolidated the two applications,
namely, the application for review and an application to the effect
the CCMA award. Thus, his Lordship erred in fact and in law when he
separated the two applications without an invitation from either
of
the parties to do so.
2 Due to a
consolidation agreement reached between the two parties prior, the
applicant elected not to file an answering application
seeking
enforcement of the CCMA award. The two matters were to be heard
and/or decided on the same day by the same Presiding Officer.
Thus,
his Lordship erred in separating the two matters, such a decision
left the applicant “exposed” in that there
was no
answering affidavit filed to the application to effect the CCMA
award.
3 His Lordship erred
in law when he ruled that an application to effect the CCMA award be
entertained as a stand-alone application
without any reference to the
contents of the review application. In law, an application to effect
the CCMA award is dependent on
the merits and/or demerits of the
review application. Therefore, complete ignorance of the review
application is bad in law.
4 His Lordship’s
decision to separate the two matters caused a great prejudice to the
applicant’s case. Such prejudice
can be summarised as follows:
4.1 The application
to effect the CCMA award became unopposed by virtue of his Lordship’s
separation Order when in actual
fact both parties knew that the
application was opposed in a context of both the review application
and the consolidation agreement.
2.2 The applicant’s
representative was denied opportunity to make submissions as each
submission made on behalf of the applicant
was shot-down by his
Lordship absence of the answering affidavit being a virtue.
5
His Lordship erred in law when he ordered the applicant’s
attorneys to pay the cost of suit
de
bonis
propris
without first affording such attorneys an opportunity to show cause
why they could not be ordered to pay the costs.”
[4] Mr Molepo has
filed submissions, setting out the bases for opposing the application
for leave to appeal. PRASA has not filed
submissions in support of
its application.
[5] There is a duty
on the courts to resolve disputes as expeditiously as possible. It
would be iniquitous on the applicant that
the court not deal with the
application only because the respondent has not filed submissions on
its application. I determined
this application with these
considerations in mind.
[6] I refer to the
following points in Mr Molepo’s submissions in opposing the
application for leave to appeal:
1 There was no
agreement to consolidate the applications.
2 The applicant
(i.e. Mr Molepo) requested that the two matters be heard on the same
day by the same Judge. This was to save costs.
3 Mr Lucky Makhubela
of the respondent’s attorneys of record did not attend the
court proceedings on both 7 July 2013 (when
the enforcement
application was heard) and on 27 July 2013 (when the review
application was heard).
[7] It is a serious
matter when an attorney puts his hand to a document intended to be
part of the court process when such a document
contains falsehoods,
and when the court in turn is called to determine a particular matter
based on the content of such a document.
[8] Mr. Lucky
Makhubela signed the notice upon which PRASA makes its application.
Mr Makhubela has no personal knowledge of what
transpired in court on
7 July 2013.
[9] Mr. Mmusi,
counsel for PRASA in both the enforcement application and the review
application, requested that the review application
be postponed.
PRASA had not filed heads of argument despite a directive to do so.
Mr Mmusi told the court that he had not had the
opportunity to fully
acquaint himself with the papers in the review application and that
he wished to make written submissions
regarding that application.
[10] I agreed to the
request by Mr Mmusi and determined that the review application be
heard within a two-week period of the date
on which it was originally
scheduled to be heard. The two-week period fell on a Saturday. The
court sat on that day to hear the
review application.
[11] Mr. Mmusi did
not demur on behalf of his client that both applications should be
heard at the same time. As indicated above,
he sought an indulgence
that the review application be heard on a different date.
[12] There were no
submissions made to the court, throughout the exchange between the
court and Mr Mmusi, that:
1 The applicant and
the respondent “had by agreement consolidated the two
applications”.
2
The respondent, ‘due to a consolidation agreement reached
between the two parties”, had “elected not to file
an
answering affidavit seeking enforcement of the CCMA award [and that]
the two matters were to be heard and/or decided on the
same day by
the same Presiding Officer’.
[13] It is therefore
a serious matter when the attorneys acting for PRASA put their hand
to a notice in which they rely on grounds
stated in such a notice,
when regard is had of the proceedings in court at the time when the
enforcement application was determined.
[14] The bases upon
which the PRASA application is made are a stain on the court. The
bases are false. The court must guard its
dignity and prestige in
such circumstances.
[15] I find, in the
circumstances, that there is no merit in the application for leave to
appeal. There is equally no merit in the
other grounds advanced on
behalf of the respondent.
[16] It is not a
requirement that this court could only determine the enforcement
application with reference to the merits in the
review application.
The applicant in the enforcement application filed a substantive
affidavit setting out the bases upon which
he contended that the
award should be made an order of court. That was sufficient for the
court to consider the application.
[17]
There is equally no merit to the ground that the court could not have
made an order of cost
de
bonis propris
without
first inviting the attorneys to show cause why such a cost order
could not be made.
[18] I am of the
view, having considered the bases upon which the application is made,
that there are no reasonable prospects that
another court may come to
a different conclusion. I therefore refuse the application for leave
to appeal.
[19] I have referred
to the conduct of the attorneys in respect of the stated grounds of
appeal. I find that the application for
leave to appeal is both an
abuse of the court process and a stain on the dignity of the court.
The court should express its displeasure
as a result. Mr Makhubela,
in signing the notice upon which the application is made, acted
contrary to his duties to this court.
[20]
The Supreme Court of Appeal stated, in
Vassen
v Law Society of the Cape of Good Hope
[1998] ZASCA 47
;
1998
(4) SA 532
(SCA) at 538G, that being ‘an attorney, as any other
officer of the Court, is an honourable profession which demands
complete
honesty, reliability and integrity from its members...’.
This sentiment was echoed in S
v
Nyoka
[2009]
JOL 24504
, (ECG) the court reminded practitioners in para 33 that:
'Attorneys should
have a high regard for truthfulness, be incorruptible and have a high
sense of honour and integrity.
They are an integral
part of the administration of justice and people should be able to
trust them, especially where trust moneys
are involved.'
[21]
Pleadings should not be a fabrication and legal practitioners have a
duty to the court, not only to his client, and must not
misrepresent
facts to the court.
Jwili
v Road Accident Fund
2010
(5) SA 32
(GNP) ([2010] ZAGPPHC 37);
Tshabangu
v Road Accident Fund
[2011]
ZAGPJHC 145 (19 October 2011);
Kunene
v Road Accident Fund
[2011]
ZAGPJHC 194 (8 December 2011); and
Sibeko
v Road Accident Fund
[2012]
ZAGPJHC 43 (28 March 2012), give a clear indication to attorneys of
the expectations of them from the courts.
[22] The above
authorities apply equally to notices placed before a court under the
hand of an attorney.
[23]
Mr Makhubela failed to comply with what is expected of him as an
officer of the court. He conducted himself in an irresponsible
manner
in putting his hand to an application on the stated grounds. He owes
the court a duty to uphold the dignity of the court.
He failed to
discharge that duty in putting his hand to a document that contains
demonstrably false statements about what transpired
in court. I find
that an order of costs
de
bonis propriis
is
appropriate.
[24] I make the
following order:
24.1 The application
for leave to appeal is dismissed.
24.2.The
respondent’s instructing attorney, Mr Lucky Makhubela, is
ordered to pay the applicant’s costs incidental to
this
application
de
bonis propriis
on
the scale as between attorney and client.
24.3The Registrar is
directed to provide a copy of this judgement to the Secretary of the
Law Society of South Africa.
MOOKI 0
Acting Judge of the
Labour Court of South Africa
APPEARANCES
Applicant: Shongwe
Attorneys
Respondent:
Makhubela Attorneys