Hopeless cases: Legal practitioner’s fiduciary duty towards the court and their clients.

In the recent UNISA case of the University of South Africa v Socikwa and Others (J 675/23; J 680/23) [2023] ZALCJHB 172, Acting Judge Sethene delivered a scathing judgment condemning legal practitioners who proceed with hopeless cases, which waste court resources, demean the profession and which are brought solely for financial benefit and at odds with their client’s best interests.  

The acting judge clearly and unequivocally expressed his frustration with the conduct of the legal practitioners in the matters, bemoaning their blatant abuse of Court processes and their client’s funds.

In his judgment, Sethene AJ dealt with two urgent applications, in two separate matters with similar fact sets, brought before the labour court following arbitration awards.

In the first case, Unisa launched a review application on 26 October 2022 following an arbitration award of compensation in favour of Dr. Socikwa, as the dismissal was found to be substantially and procedurally unfair. However, due to the delay and/or neglect in filing the Arbitration record, the review application was deemed withdrawn, alternatively archived (in terms of the Labour Relations Act), with Unisa providing no justification for the delay nor instituting proceedings to resuscitate its review application.

After the Sheriff attended Unisa’s premises to attach movable assets, Unisa launched an urgent application on the false presumption that review proceedings were still pending before the court.

In addition to the scathing remarks aimed at Unisa’s legal practitioners, Sethene AJ reserved specific criticism for the deponent of the founding affidavit in the urgent application, who he indicated had “elected to be a stranger to the truth”, as the deponent alleged that the review application was only launched on 5 May 2023. The Acting Judge further suggested that the deponent “deliberately meandered into amnesia as a tactic to deceive the court” and subsequently ordered that the Legal Practitioner’s Council investigate the conduct of the deponent (the Acting Executive Director: Legal Services Department at Unisa) in misleading the court.

Similarly, in the second case, an arbitration award found that the dismissal of Ms. Mavhunga was substantially and procedurally unfair. After that, the Department of Justice and Constitutional Development (Limpopo Province) launched a review application, which was subsequently deemed withdrawn in terms of the Labour Relations Act due to the Department’s delay and/or neglect in filing the review record. Again, following the attendance of the Sheriff at the applicant’s place of business, an urgent application was launched. Sethene AJ ruled that this urgency was wholly self-created through the applicant’s negligence, and no reasons were explained for the obvious and blatant non-compliance with the time frames prescribed in s145(1)(a) of the Labour Relations Act.

In addressing both Unisa and the Department of Justice and Constitutional Development (Limpopo Province), the court lamented “the pervasiveness of ineptitude within the organs of state”, characterising it as “a brazen assault on the rule of law and a travesty of justice to the citizens”. In doing so, Sethene AJ referenced sections 165(4) and 237 of the Constitution, which mandates organs of states to assist courts to ensure the dignity, accessibility, and effectiveness of the courts.

Sethene AJ emphasised that bodies who perform public functions (such as the applicants) ought to be extra vigilant and ensure compliance with Court Rules, Statutes, and Practice Manuals of Courts. Furthermore, Sethene AJ blamed the legal practitioners for launching such a hopeless application, contrary to their fiduciary responsibility towards the court. This fiduciary relationship with the court translates to the duty to protect the court from the “burden of entertaining and adjudicating absolutely hopeless cases”. In addition to the duty mentioned above, legal practitioners have a fiduciary responsibility towards their clients to be honest about the prospects of success, advising them against litigation when the prospects are very weak or hopeless in this instance.

Hopeless cases occur not only when the legal practitioners think cases are hopeless but also when the practitioner has knowingly lent himself to an abuse of process or improper time-wasting (as stated in an Article by Judge Owen Rogers). This approach balances the client’s right to have any dispute that the application of law can resolve decided in a fair public hearing before a court or, where appropriate, another independent and impartial tribunal or forum (Section 34 of the Constitution).

In both cases, Sethene AJ made a punitive costs order, directing that the legal practitioners would not charge any fee for legal services rendered and that any payment already received would be reimbursed to their clients.

Is this judgment restricted to the labour law context?

One of the primary objectives of the Labour Relations Act is to create an expeditious dispute resolution system. Sethene AJ based his punitive cost order on section 162(3) of the Labour Relations Act, which confers this Court with the discretion to award costs against a party to the dispute or against any person who represented that party in the proceedings before the court.

The parties’ conduct is considered when such an order is made, as in casu where the behaviour of the legal practitioners frustrates the objective of an expeditious dispute resolution system. Therefore, one might believe that it is only in the ambit of the LRA that courts are clothed with the discretion to grant such punitive cost orders.

However, such a narrow interpretation of this judgment would result in a lack of uniformity in our legal system. This case’s punitive consequences will undoubtedly apply in other contexts.

The court must prevent vexatious claims, abuse of court processes and legal practitioners failing to uphold their fiduciary duties toward the court and their clients. It has the inherent discretion to make punitive cost orders against legal practitioners and parties who fail to uphold the abovementioned standards. This discretion must be exercised without fear or favour to protect the profession’s standing, and attorneys would do well to heed the outcome of the court. As officers of the court, there is a duty to both clients and the court to uphold the ethics of the profession, and accordingly, the court’s approach in this matter must be noted by all of us acting in the legal sector. 

Authored by Justine Paries, Julia Penn and Nick Roelf