Sneller Verbatim/HDJ
IN THE LABOUR COURT OF SOUTH AFRICA
BRAAMFONTEIN CASE NO: JS622/01
20020517
In the matter between
P J BEETS Applicant
and
VESSEL INSPECTION SERVICES Respondent
_________________________________________________________
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J U D G M E N T
_________________________________________________________
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WAGLAY J :
1. The CCMA issued a certificate indicating that the dispute referred to
it by the applicant against the respondent concerning an alleged unfair
dismissal based on respondent's operational requirements remained
unresolved. The certificate was issued on 19 March 2001.
2. On 27 July 2001 applicant's statement of case was filed. The filing
sheet to the applicant's statement of case records that the documents
filed on 27 July 2001 were:
"prepared and filed by Advocate Jeannine B Coetzee instructed by
Silver & Warren Attorneys and in cooperation with Coetzee and
Associates CC, the representative of the applicants."
This is repeated in paragraph 1 of the applicant's statement of case and
the address given in the same paragraph, being the address at which
the applicant would accept service of relevant documents is recorded
as follows:
"29 Klub Street, Randpark, Telephone number 0114769226/7, fax
0114769225, P O Box 4234 Cresta 2118"
3. On 1 November 2001 the applicant filed a schedule of documents,
together with five documents as well as a request for default judgment.
4. On 7 December 2001 applicant filed two documents under cover of a
filing sheet. The two documents were as follows: Applicant's reply to
respondent's application for condonation and applicant's reply to
respondent's response. Although the file is paginated and indexed,
neither respondent's application for condonation nor respondent's
response is in the bundle of pleadings in the court file.
5. On 7 December 2001 applicant filed two affidavits in terms of the
Rule 4(2)(b), stating:
i) that the statement of case was telefaxed to the respondent
on 27 July 2001; and
ii) that the request for default judgment was telefaxed to the
respondent on 6 September 2001.
Both these affidavits are deposed to by one Simone Scheepers and the
telefax confirmation reports indicate that these documents were faxed
from: Fax number: 0114769225, Name: Coetzee and Associates.
6. On 4 April 2002 the Registrar set the matter down for default
judgment for 8 May 2002. On 8 May 2002 a notice of withdrawal as
attorneys of record was filed by Joubert Attorneys. They withdrew as
attorney for the respondent herein.
7. On the same day (8 May 2002) this matter came before me for
default judgement, the applicant being represented by one Advocate J
B Coetzee. I postponed the matter to today, making the following
order:
"1. The matter is postponed to 17 May 2002;
2. Attorneys Silver & Warren who are on record as being applicant's
attorneys of record, must under oath explain what is meant by the
recordal in the documents filed that they act "in cooperation with
Coetzee and Associates CC" and also why they have not signed any of
the documents (pleadings) filed of record;
3. Advocate Coetzee who appeared on behalf of the applicant and who
represented that she was briefed by Attorney Silver & Warren, must
explain under oath the nature of her brief and her role, if any, in
Coetzee and Associates CC.
4. The said affidavits must be filed by noon on 16 May 2002."
8. On 15 May 2002, under a filing sheet filed by Silver & Warren,
applicant's attorneys ( of 70C Oxford Road, Riviera, Johannesburg, P O
Box 47153 Parklands 2121; telephone 486 2850, reference, Mr A
Hindss/5734), affidavits deposed to by Janine Beatrice Coetzee
(hereafter "Coetzee"); Anthony Hinds (hereafter "Hinds"), Peter
Johannes Beets (hereafter "the applicant") were filed with this Court.
9. In her affidavit Coetzee explained that she is an admitted advocate.
She then explains that Coetzee and Associates CC is a close
corporation which "specialises in labour law and industrial relations".
The said close corporation's managing member is one Anton Coetzee
(hereafter "Anton") who is her husband, and its two other employees
are Simone Scheepers and Leonie Steenkamp.
10. Coetzee further states that the close corporation consulted with the
applicant and referred his dispute to the CCMA, more specifically that
Simone Scheepers attended the conciliation proceedings with the
applicant and liaised with CCMA in order to obtain a certificate of
outcome of this dispute between the applicant and the respondent.
11. As the matter between the applicant and the respondent remained
unresolved and had to be referred to this court for adjudication, she
states in her affidavit: The close corporation which
"has no locus standi in the labour court requested Silver &
Warren attorneys to act on behalf of the applicant to refer the matter to
the Labour Court".
She adds:
“Silver & Warren thereafter instructed me to draft the statement of case
which had to be drafted."
12. Coetzee's affidavit goes on to state that:
"There is no association between Silver & Warren Attorneys and
Coetzee and Associates CC. The only cooperation which exists
between Silver & Warren Attorneys and Coetzee and Associates CC is
that Coetzee and Associates CC referred the matter to Silver &
Warren ... to refer the matter to the Labour Court. Silver & Warren
thereafter briefed me to draft the pleadings and represent the applicant
in these proceedings."
13. A copy of the brief cover from Silver & Warren to Coetzee is
annexed to her affidavit. This is dated 29 May 2001 and under the
heading Brief records:
"Preparation of settlement of claim
Pretrial
On trial."
14) Finally she states that there is no cooperation or association "of
any manner whatsoever between Silver & Warren Attorneys and
Coetzee and Associates CC".
15) The affidavit from Hinds is to the effect that he is an admitted
attorney, practising as a partner under the name and style of Silver &
Warren. Hinds states that he was contacted by Anton on 29 May 2002:
"[To]take over the matter and to act on behalf of the applicant herein.
He then instructed advocate J Coetzee to prepare a statement of case
and to act on behalf of the applicant for the trial herein in due course."
He further confirms what Coetzee deposed to it in an affidavit. The
applicant basically confirms what is contained in the affidavits of
Coetzee and Hinds.
16. From the documents filed of record and the affidavits filed in
response to the order of this court, the picture that emerges is this:
i) Coetzee and Associates CC whose membership is not disclosed
in this court is a labour consultancy who acted on behalf of the
applicant in negotiations with the respondent company to reach a
settlement of the dispute which applicant alleged he had with the
respondent.
ii) That notwithstanding the fact that Coetzee and Associates CC
had no right of appearance at the CCMA it "attended conciliation
proceedings with the applicant" at the CCMA.
iii) Since Coetzee and Associates could not represent the applicant at this
court they contacted Attorneys Silver & Warren to be on record in the
matter and that the attorneys simply forwarded a blank brief to
Advocate Coetzee, the wife of the managing member of Coetzee and
Associates CC to attend to the matter.
iv) Coetzee drafted the applicant's statement of case with her address as
the address on which all documents relating to applicant's matter would
be dealt with, that is, Attorney Silver & Warren were to play no role
whatsoever in the matter, other than forwarding a brief cover to
Coetzee.
v) That documents that were faxed to respondent as required by the rules
of this court, were in fact faxed by Coetzee and Associates CC.
17. There is no indication whatsoever that the applicant ever consulted
with any attorney from Silver & Warren. In fact, even before Silver &
Warren were “requested” to “act” on behalf of the applicant, applicant
was advised that if this matter was required to be referred to this Court,
it would then be “required” to be referred to Silver & Warren Attorneys,
and further, that an advocate “would be briefed” to represent him in this
matter.
18. Applicant has not said that he ever consulted any attorneys from
Silver & Warren or that he was required, or not required to pay any fees
for their services. Hinds is also silent about this very important issue.
In fact, there is no indication whatsoever that Silver & Warren Attorneys
had any idea about the case that it had briefed Coetzee to deal with.
Although Hinds states that he briefed Coetzee with a bundle of
documents, he does not say what these documents were or how he
came to be in possession of these documents. From his affidavit it is
clear that neither he nor any one from Silver & Warren consulted with
the applicant. It also does not appear that there was any consultation
with any person from Coetzee and Associates CC.
19. Furthermore, Silver & Warren briefed Coetzee on the same day on
which it was requested to act. Assuming that Silver & Warren was
properly instructed and that it properly briefed Coetzee, why is it then
that their name was not recorded as the address at which documents
would be served in respect of this matter?
20. Having regard to the above, what is clear is that this matter was in
fact being dealt with by Coetzee and Associates CC together with
Coetzee. Silver & Warren Attorneys were simply used, with their
consent, to mislead this Court into believing that the matter before this
Court is being handled by those entitled to appear in this court. I say
this, not only for reasons recorded above. If one has regard to the fax
number recorded in applicant's statement of case, as a fax number at
which it will accept service of documents, the fax number is that of
Coetzee and Associates CC. Furthermore, the affidavit of service was
attested to by the employees of Coetzee and Associates CC and faxed
from their fax machine. There is nothing to indicate that Silver &
Warren Attorneys exercised any control once they forwarded a brief
cover to Coetzee. Nor were they aware of what had or was happening
in the matter. In fact, they may be surprised to learn that if they did
properly accept instructions from the applicant, as they claim, they
could possibly be faced with a claim against them by the applicant of
failing to timeously refer this dispute to this Court. The dispute was in
fact referred on 27 July 2001 to this Court, approximately a month after
the prescribed period and two months after they "briefed" Coetzee.
21. Silver & Warren Attorneys, I am satisfied, were not really
applicant's attorneys. What they did was lend their name to Coetzee
and Associates CC and Coetzee so that these parties could jointly bring
applicant's matter to this Court under the guise that Silver & Warren
Attorneys were the applicant's attorneys in this matter.
22. Silver & Warren Attorneys, Advocate Janine Beatrice Coetzee and
Coetzee and Associates CC acted in consert to deliberately mislead
this Court. Since both the attorneys at Silver & Warren Attorneys and
Coetzee are officers of this Court, their conduct is nothing short of being
dishonourable. Their conduct brings the legal profession into disrepute.
Silver & Warren held themselves out to be briefing attorneys when they
were not and Coetzee used them to perpetuate this role.
23. On the assumption that Coetzee is a member of the Bar, I shall ask
the Registrar of this Court to refer this judgement to the Bar Council. I
shall also ask the Registrar to refer this judgment to the Law Society, to
investigate any possible actions that may need to be taken against
Silver & Warren Attorneys or such attorneys from that firm who may be
responsible for this wrongful conduct.
24. In dealing with applicant's "representatives", it appears as if
applicant is forgotten. Applicant's action is in respect of an unfair
dismissal dispute. The certificate of nonresolution of the dispute,
which is a condition precedent for the institution of applicant's action
was issued by the CCMA on 19 March 2001. In terms of the relevant
section of the LRA applicant was required to launch his application
within 90 days of that date. As recorded earlier the application was only
made on 27 July 2001 the application is therefore out of time. This
Court has no jurisdiction to hear applications which do not comply with
the time limit that is prescribed by the Act, unless the party which brings
the application out of time, applies for the condonation of the late filing
of the application and same is granted. In this matter there is no
application to condone the late filing of the application, and the
application as it stands, is therefore not one which this court can
entertain.
In the result I make the following order:
1. The application is struck from the roll.
2. The Registrar of this Court is to forward a copy of this judgment
together with the documents filed of record to the Local Bar Council and
to the Law Society for them to investigate and take such action as they
may deem expedient against advocate Janine Beatrice Coetzee and
Attorneys Silver & Warren.
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WAGLAY,J
DATE OF HEARING AND JUDGEMENT: 17 TH MAY 2002
APPEARANCES: AS RECORDED IN THIS JUDGEMENT