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[2015] ZALCJHB 32
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Eskom Holdings SOC Limited v Commission for Conciliation, Mediation and Arbitration and Others (J234/15) [2015] ZALCJHB 32; (2015) 36 ILJ 1872 (LC) (11 February 2015)
REPUBLIC
OF SOUTH AFRICA
THE LABOUR COURT
OF SOUTH AFRICA, JOHANNESBURG
JUDGMENT
Case No: J234/15
DATE: 11 FEBRUARY
2015
Reportable
In
the matter between:
ESKOM
HOLDINGS SOC
LIMITED
............................................................................
Applicant
And
COMMISSION
FOR CONCILIATION, MEDIATION AND
ARBITRATION
...................................................................................................
First
Respondent
COMMISSIONER
ANGELO RAYNARD;
N.O
................................................
Second
Respondent
WILHELM
JEREMIAH
SMITH
.........................................................................
Third
respondent
SHERIFF
OF THE HIGH COURT, BLOEMFONTEIN WEST
...........................
Fourth
Respondent
Heard: 10
February 2015
Delivered: 11
February 2015
Summary: Urgent
application to stay enforcement of the arbitration award pending
finalisation of a review application; Attorneys
for the execution
creditor having previously given a written undertaking not to proceed
with execution; Such undertaking binding;
Application granted.
JUDGMENT
VOYI, AJ
[1]
This is an urgent application launched by
the Applicant as contemplated by Rule 8 of the Rules of the Labour
Court. As relief, the
Applicant primarily seeks an order staying the
further enforcement of the arbitration award issued by the Second
Respondent pending
the finalisation of the review application
launched by the Applicant under case number JR1818/2014 on 28 August
2014.
[2]
The Applicant also seeks an order for the
release of the goods already attached by the Fourth Respondent as
well as an order setting
aside the writ of execution pursuant to
which the goods were seized and laid under judicial attachment.
[3]
The application is opposed by the Third
Respondent. To this end, an answering affidavit was duly filed. The
Applicant delivered
a replying affidavit in reaction to the Third
Respondent’s opposing papers. I also had the benefit of oral
submissions from
both parties’ legal representatives for and
against the granting of the relief sought.
[4]
At the core of the urgent application is an
undertaking
given by the Third Respondent’s attorneys on behalf of their
client. This undertaking came about after the Applicant’s
previous attorneys addressed an electronic mail to the Third
Respondent at approximately 09:16 on 01 October 2014 in the following
terms:
‘
Sirs,
We
are ESKOM’s attorneys of record in the above matter. As you are
aware a review application has been filed in the Labour
Court under
Case No. JR 1818-14 and is currently pending.
Recently
we received a report from client that you have obtained a Writ of
Execution to give effect to the ruling under review.
It is our humble
but firm held opinion that, in the circumstances, your client should
not proceed with the execution seeing that
the order which he seeks
to execute is subject to a formal court process to set it aside.
Crucially,
approaching court to set it aside will just result in excessive and
unnecessary expenses. We therefore request you URGENT
(sic) written
undertaking that you will not proceed with execution pending the
review. In view of the fact that attachment has
already been made, we
request that you revert to us by no later than 11H00 A.M today.
Unfortunately should we not receive the undertaking,
we will be
forced to approach the Labor Court (sic) to set it aside on an urgent
basis.
Seeing
that the costs that would have been incurred in this regard would
have been unwarranted, we will then have to pray for a
cost order
against your client.
Finally,
with regards to your client’s opposing affidavit in the main
review application, we advise that services and the
actual papers are
defective and that should this not be corrected within 2 days hereof,
we will advise client and seek a mandate
to finalise the review on an
uncontested basis.
Kind
regards,’
[5]
In response to this correspondence and at
approximately 10:32 on 01 October 2014, the Third Respondent’s
attorneys conveyed
to the Applicant’s then attorneys of record
the following:
‘
Dear
Sirs
We
have discussed your letter to us with our client and who on his turn
discussed the letter with his Advocate. Our instructions
is (sic) to
inform you that our client will not proceed with the writ and that we
have been instructed to call the writ back from
the Sheriff.
Trusting
that you will find it in order.
Regards’
[6]
It is worth mentioning that shortly after
this response was issued by his attorneys, the Third Respondent also
addressed his own
electronic mail to the Applicant’s previous
attorneys. In his correspondence, the Third Respondent stated the
following:
‘
I
also want to put it on record that we will not proceed now, but I
request Eskom attorney (sic) to get an urgent date from Labour
Court
(sic). If a date is not given within a week from this date, I will
instruct my attorney to proceed with WRT. Thanks.’
[7]
The Third Respondent, in his aforesaid
correspondence, did not dispute or deny the instructions he gave to
his attorneys in response
to the request for an undertaking. In
essence, the Third Respondent sought to put in place some conditions
to the undertaking already
provided.
[8]
As to what prompted the Third Respondent to
bypass his attorneys and send out a correspondence directly to the
Applicant’s
previous attorneys, I do not know. The Third
Respondent had elected and appointed his attorneys to represent him
and to, effectively,
be his mouthpiece. It was, therefore, highly
inappropriate of him to disregard his attorneys and communicate
directly with the
opposing firm of attorneys. It may very well be
that the Third Respondent was not aware of this but his attorneys
could have guided
him accordingly. Be that as it may, I now turn to
the undertaking given by the Third Respondent’s attorneys as
well as its
implications.
[9]
At
an elementary level, it is perhaps useful to refer to the definition
of an undertaking in general. The Shorter Oxford English
Dictionary
[1]
defines an
undertaking to mean ‘a pledge, a promise or a guarantee’.
In the legal context, I borrow from the (then)
Guide to the
Professional Conduct of Solicitors (1990) published by the Law
Society, London, which defined an undertaking to be
an unequivocal
declaration of intention which is given by one practitioner to
another, who reasonably places reliance thereof,
in the course of
their practice.
[10]
In this matter, I have no hesitation in
coming to the conclusion that the Third Respondent’s attorneys
did give an undertaking
that the writ of execution will not be acted
upon pending the outcome of the review. The undertaking was given
after the said attorneys
had discussed the correspondence requesting
an undertaking with the Third Respondent himself.
[11]
It was even mentioned that the Third
respondent had, further, discussed the matter with his Counsel. Of
importance, the undertaking
given was not qualified and was in direct
response to the request made by the Applicant’s previous
attorneys.
[12]
The
nature of an attorney’s undertaking has received considerable
attention in other jurisdictions. It goes without saying
that
undertakings are of great significance to the practice of law. The
importance of undertakings by attorneys in the Canadian
context was
remarked on in
Bogoroch
& Associates v Sternberg
[2]
as follows:
‘
[Attorneys’]
undertakings are matters of utmost good faith. They are traditionally
given to expedite and facilitate the furtherance
or conclusion of
matters upon which [attorneys] are engaged on behalf of their
clients. These efficacies result in savings to lawyers’
time
that can be passed on to clients. Time is spent more efficiently and
work is done more smoothly. Because of that, [attorneys]
must be able
to rely upon undertakings, which are promises given by one [attorney]
to another to do or to refrain from doing an
act.’
[13]
It
was also pointed out in
Hammond
v. Law Society of British Columbia
[3]
that
‘
[w]hen
a lawyer's undertaking is breached, it reflects not only on the
integrity of that member, but also on the integrity of the
profession
as a whole
.’
[14]
In view of the correspondence directly from
the Third Respondent himself, it would not be far-fetched to conclude
that the Third
Respondent’s attorneys may have been pressured
by their client in discarding the undertaking previously given. The
letter
they issued on 4 November 2014 attests to this possibility. In
this letter, the Third Respondent’s attorneys recorded
inter
alia
that ‘
[they]
now received instructions from [their] client to again proceed with
the Warrant of Execution herein
.’
[15]
What
the Third Respondent’s attorneys failed to appreciate is that
their undertaking was of paramount importance and could
not have been
disregarded at whim, whatever the Third Respondent’s subsequent
instructions may have been. This was pointed
out in
Heg
Consulting Enterprises (Pty) Ltd and Others v Siegwart and Others
[4]
,
where Desai J remarked as follows:
‘
Katzeff,
an obviously experienced attorney, knew that, in terms of the ethical
rules of
his profession, the interests
of his client were, inter alia, subject to
his duty to the Court and
any
undertakings given by him in the course of his professional work
.’
[the underlining is mine]
[16]
It
is worth pointing out as well that undertakings given by attorneys in
the course of their practice are more than mere contractual
arrangements as failure to honour an undertaking can constitute
professional misconduct.
[5]
[17]
In my opinion, attorneys are not legally
obliged to give undertakings to their colleagues. However, once an
undertaking has been
given, it must be honoured. The simple rule to
be observed has to be that an attorney should not give a professional
undertaking
which he cannot fulfil and should fulfil every such
undertaking which he gives.
[18]
All things considered, I come to the
conclusion that the undertaking given by the Third Respondent’s
attorneys, on the Third
Respondent’s instructions, is strictly
binding and must be given effect to.
[19]
It is legally impermissible for the Third
Respondent and his attorneys to simply disregard or abandon their
undertaking in this
matter. The undertaking was freely given and the
Applicant’s attorneys relied thereupon. It must be honoured.
[20]
It, therefore, follows that the present
application must succeed. I accordingly grant an order as prayed for
in paragraphs 2, 3
and 4 of the notice of motion dated 5 February
2015.
Voyi,
AJ
Acting
Judge of the Labour Court of South Africa
APPEARANCES:
For the
Applicant: Mr A Patel of Cliffe Dekker Hofmeyr Inc
For the Third
Respondent: Adv JP Breytenbach
Instructed
by: Stander & Partners
[1]
The
Shorter Oxford English Dictionary, 6
th
Ed., Vol. 2 ; N-Z
[2]
(2007)
229 OAC 284
[3]
2004
BCCA 560
(CanLII)
[4]
2000
(1) SA 507
(C)
[5]
See:
Ruling of the Council of the (then) Transvaal Law Society (1981
DR
160)