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By: Candice Murray and Michelle Naidoo

In a recent landmark case, the University of South Africa (UNISA) v Socikwa and Others,[1] Acting Judge Sethene delivered a scathing judgment that not only exposed the pitfalls of pursuing hopeless cases but also sent a powerful message to legal practitioners who neglect their fiduciary duties to the court and their clients. This judgment is a stern warning to legal representatives.

A Scathing Condemnation

Judge Sethene’s judgment pulls no punches. He unequivocally expressed his frustration with legal practitioners who pursue cases with scant merit, that waste court resources, and cases brought solely for financial gain, often at odds with the best interests of the client. This condemnation arose out of two separate cases that shared a common thread of legal missteps and procedural negligence.

The UNISA Case

In the first case, a former UNISA vice-principal under a fixed-term contract, challenged UNISA’s decision not to renew her contract. The CCMA issued an arbitration award in favour of the employee, awarding her approximately R1.2 million in compensation.

UNISA then filed a review application before the Labour Court, but failed to comply with time periods which had the effect of the application for review being “deemed archived”. UNISA only acted when Dr. Socikwa instituted enforcement proceedings to attach assets to satisfy the amount awarded to her in May of the following year, claiming there was a pending review application. UNISA then launched an urgent application to stay execution proceedings on grounds that there existed a pending review.

The Judge reserved special scorn for the deponent of the founding affidavit, who was accused of electing “to be a stranger to the truth”, or “Or perhaps, Prof Peach deliberately meandered into amnesia as a tactic to deceive the court.

The Judge went further and ordered an investigation by the Legal Practitioner’s Council into the deponent’s conduct.

The Department of Justice’s Misstep

The second case that attracted Judge Sethene’s ire involved the Limpopo Department of Justice and Constitutional Development. In this instance, a dismissed clerk had secured an order of reinstatement from the General Public Service Sectoral Bargaining Council. However, the department filed a review application before the Labour Court a staggering 37 weeks later.

An urgent application was subsequently filed to stay the execution of the arbitration award, a move the Judge found to be a result of the Department’s own negligence.

A Blatant Assault on the Rule of Law

Judge Sethene minced no words when addressing both UNISA and the Department of Justice. A particularly bold line from the judgment characterizes the Court’s assessment of conduct as follows:

The conduct of both Unisa and the Justice Department highlights that the pervasiveness of ineptitude within the organs of state is a brazen assault on the rule of law and a travesty of justice to the citizens.”

Fiduciary Duty to the Court

Central to the judgment is the concept of fiduciary duty. Legal practitioners, Judge Sethene emphasized, have a duty to protect the court from “entertaining and adjudicating absolutely hopeless cases.” Furthermore, they owe a fiduciary responsibility to their clients to provide honest assessments of a case’s prospects, advising against litigation when chances of success are weak.

Beyond Labor Law

While this judgment involved a labour dispute, its ramifications extend beyond to all practice areas. The punitive costs order issued by Judge Sethene signals a clear message: the court has the power to prevent vexatious claims, abuse of court processes, and legal practitioners failing to uphold their fiduciary duties. This discretion must be exercised to maintain the integrity of the legal profession.

A Wake-Up Call for All Legal Practitioners

In essence, this judgment serves as a wake-up call to the legal profession. Legal practitioners must heed their ethical responsibilities to both the Court and their clients. Officers of the court have a duty to uphold the standards of the profession. This landmark judgment highlights the importance of integrity and professionalism in the practice of law.

These cases highlight the critical need for ethical conduct, diligence, and responsibility within the legal profession. It serves as a stern reminder that pursuing hopeless cases not only undermines the court’s resources but also tarnishes the reputation of the legal profession as a whole and can have serious consequences for legal practitioners.

Photo by Berta Ferrer on Unsplash

[1] (J675/23; J680/23) [2023] 8 BLLR 836 (LC).