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[2018] ZALCJHB 91
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Manaka v South African National Council for the Blind (JS83/14) [2018] ZALCJHB 91 (6 March 2018)
THE
LABOUR COURT OF SOUTH AFRICA,
HELD
AT JOHANNESBURG
C
ase no: JS 83/14
In
the matter between:
MOLONTJIE
FRANSCISCA MANAKA
Applicant
and
SOUTH
AFRICAN NATIONAL
COUNCIL FOR THE BLIND
Respondent
Costs
order delivered
:
6 March 2018
COSTS
ORDER
LAGRANGE
J
Background
[1]
On 17 August 2017, the trial in this matter was postponed
sine die
as a result of the late withdrawal of the applicant’s
erstwhile attorneys of record, Makhubela Attorneys (‘Makhubela’).
Makhubela and the applicant were called upon to show cause why they
should not respectively be held liable for the costs of the
postponement.
[2]
The trial was scheduled to start on 17 August 2017, and the notice of
withdrawal dated 14 August was only filed on 16 August.
The
respondent’s attorneys were only notified on 15 August of
Makhubela’s withdrawal as attorneys of record on instruction
of
the applicant.
[3]
The versions of the applicant and Makhubela concerning their
communications in the fortnight before trial are not consistent.
What
is clear is that Makhubela tabled an offer of settlement by 3 August.
It is difficult to accept that Makhubela only canvassed
this proposal
with the applicant as late as 12 August. The applicant makes no
mention of her husband’s involvement in demanding
that
Makhubela surrender her file or in demanding that Makhubela file a
letter of withdrawal. On the affidavits, it seems most
probable that
an instruction to Makhubela to withdraw as attorneys of record was
only issued to them on 14 August. On the other
hand, the respondent’s
attorneys were corresponding with Makhubela from 25 July on final
preparations for trial and Makhubela
was dilatory in responding and
failed to file a practice note by 11 August. Makhubela is vague about
when it became aware that
it would be difficult to obtain counsel and
does not mention the applicant’s claim that she was only
advised on or about
8 August that there was a need to obtain other
counsel.
[4]
I accept that Makhubela may have been struggling to secure counsel
and were trying to persuade the applicant to settle the matter
before
trial, but it should not have been still trying to confirm the
appointment of counsel barely a week before trial. It is
clear that,
it was clearly not in a position to proceed. In the circumstances, it
should have given the applicant more warning
of the impending crisis
in the trial preparation.
[5]
Having considered the affidavits filed, I am satisfied that Makhubela
Attorneys’ failure to try and address a settlement
earlier so
that they and the applicant could take stock of the matter timeously
before the trial preparation was adversely
affected was in
large part the cause of the late withdrawal by the applicant of her
instructions to them . They are better equipped
than the applicant to
know what was required to prepare for trial and were late in their
preparations. Her late withdrawal of her
instructions to them,
notwithstanding that she was not entirely blameless for doing so is
mainly a consequence of Makhubela’s
belated preparations.
[6]
In the circumstances, in law and fairness, Makhubela should pay the
wasted costs of the postponement.
Order
[7]
Makhubela Attorneys must pay the respondent’s wasted costs of
the postponement
_______________________
Lagrange
J
Judge
of the Labour Court of South Africa
(In
Chambers)