LABOUR – Costs – Hopeless case – Urgent applications to stay writs of execution when review applications are deemed withdrawn must be deprecated – Legal practitioners not entitled to charge for legal services rendered when the case is hopeless and the facts relied upon for urgency are also hopeless – Applications struck off the roll for want of urgency – Applicants’ legal practitioners barred from charging any legal costs flowing from applications – Labour Relations Act 66 of 1995, s 162.
Facts: In the first case, Dr Socikwa was successful at the CCMA where the arbitrator found that her dismissal by Unisa was substantively and procedurally unfair and awarded her compensation of R1,271,964.72. The Sheriff later attended at the Unisa premises to attach movable assets for the purposes of sale in execution. In the second case, Ms Mavhunga approached the bargaining council where it was found that her dismissal from the Department of Justice was substantively and procedurally unfair and her reinstatement was ordered. Ms Mavhunga later attached the Justice Department’s movable property, being four vehicles.
Application: The review applications had been deemed withdrawn or archived due to the employers’ failure to take steps to prosecute the applications. Triggered by the attendance of the sheriffs, the employers launched urgent applications to stay the writs of execution.
Discussion: Costs and section 162 of the Labour Relations Act 66 of 1995; the Rules of the Labour Court, the Practice Manual and the time period for filing applications; that for both applicants, Unisa and the Justice Department, urgency was self-created for reasons that are inexplicable, devoid of rationality and candour; and that the pervasiveness of ineptitude within the organs of state to comply with the rules of court assail sections 165(4) and 237 of the Constitution on accessibility of the courts and diligent performance of obligations.
Findings: The launching of these absolutely hopeless urgent applications is attributed to the practitioners who represented Unisa and the Justice Department. Acting in the best interest of the clients also denotes that a legal practitioner has an obligation to disclose to the client that the case sought to be pursued is either absolutely hopeless or has prospects of success. An attorney employed by the State Attorney who agrees to take a hopeless case to court, without properly advising the litigating department or organ of state, contravenes section 45(c) of the Public Finance Management Act 1 of 1999 (PFMA) on fruitless and wasteful expenditure.
Section 162: It must be deprecated by those who attach premium and prestige to their trade as legal practitioners to align themselves with cases that are absolutely hopeless for pecuniary reasons and thereby rendering courts as instruments to frustrate employees or employers with worthy cases for the court to adjudicate. This court must firmly and without fear, favour or prejudice apply the provisions of section 162 of the LRA in hopeless cases.
Order: The applications are struck off the roll for want of urgency. The legal practitioners are ordered not to charge any fee for legal services rendered. The applicants are ordered to pay the costs of Dr Socikwa and Nehawu on an attorney and client scale. The Legal Practice Council is ordered to investigate the conduct of Prof Vuyo Ntsangane Peach as to whether he sought to mislead the court in respect of the date of the filing to the review application by Unisa. The State Attorney is ordered to investigate the conduct of the instructing attorney who acted on behalf of the Justice Department to establish if section 45(c) the PFMA was contravened.
CRIMINAL – Private prosecution – Abuse of process – Mr Zuma’s private prosecution of journalist and lead prosecutor – Mr Zuma coming to court with “unclean hands” – Instituted prosecution for ulterior purpose – SLAPP suits against journalists warranting protection by courts – Summons in respect of both applicants was defective – Summons set aside and Mr Zuma interdicted from reinstituting or from taking any further steps pursuant to the private prosecution.
Facts: Ms Maughan is a Senior Legal Journalist employed by News24 and has been reporting on the criminal investigation of former President Zuma for almost 20 years. Mr Downer is a Senior Counsel and Senior State Advocate. Mr Zuma in his capacity as the private prosecutor caused a summons in a criminal case to be issued and served on the applicants (Ms Maughan and Mr Downer). The charges related to the alleged disclosure of a letter marked “Medical Confidential”.
Application: Seeking an order setting aside the summons and interdicting Mr Zuma from re-instituting or from taking any further steps pursuant to the private prosecution.
Discussion: That Mr Zuma failed to produce any nolle prosequi certificate which would entitle him to institute a private prosecution against Maughan; that Mr Zuma has failed to allege and prove an injury in the context of section 7(1)(a) of the Criminal Procedure Act 51 of 1977; that the summons in respect of both applicants is defective and is to be set aside; and the manner in which Mr Zuma has dealt with the facts pleaded in the founding affidavits of Maughan and Downer was one of blanket, bald denials of material allegations without laying any factual basis therefor or any explanation to justify his denials.
Findings: Mr Zuma comes to court with “unclean hands” and the private prosecution is an abuse and the court must sanction such conduct. International examples have been referenced in which courts have recognised that SLAPP suits against journalists warrant protection by the courts. This would be consistent with the provisions of section 16 of the Constitution which guarantee freedom of expression, including the freedom of the press and media. Mr Zuma’s private prosecution of Downer and Maughan constitutes an abuse of process as it has been instituted for an ulterior purpose.
Order: The summons is set aside and Mr Zuma is interdicted and restrained from reinstituting or from taking any further steps pursuant to the private prosecution.
KRUGER J, HENRIQUES J and MASIPA J
LABOUR – Dismissal – Positive alcohol test – Zero tolerance policy – Employee testing positive on breathalyzers but not on laboratory blood test – Arbitrator finding dismissal substantively unfair – Evidence that breathalyzers can give false positives in certain conditions and are less reliable than blood tests – No reviewable irregularity in arbitrator’s assessment of evidence – Application for review dismissed.
Facts: Western Chrome Mines has a policy of zero tolerance for alcohol and drugs. The policy deems a person unfit to enter the premises in the event that their breath alcohol level exceeds 0.000 percent. Mr Willemse (the employee) arrived at work and was asked to take a breathalyzer test on an Alcoblow Rapid machine, which indicated a green light. He was also tested on the Lion Alcometer 500 which indicated an alcohol content of 0.013%. He was later dismissed after being charged with having tested positive for alcohol.
Application: Seeking to review and set aside an arbitration award where the arbitrator held that the dismissal of the employee was substantively unfair and ordered his reinstatement with retrospective effect.
Discussion: The arbitrator made reference to the evidence that a breathalyzer test may in certain circumstances produce false positive results and that the more reliable test is that of a blood sample tested in laboratory conditions; applicant’s submission that it was not necessary for the employee to be intoxicated for there to be a breach of the workplace rule and that he was dismissed for contravening the zero tolerance rule; and the evidence was that after the breathalyzer tests, the employee’s blood sample, analysed by the Ampath Laboratory, produced a negative result.
Findings: The evidence that breathalyzer tests were prone to give false positive results was corroborated by the doctor, who confirmed that breathalyzer tests were less reliable than blood tests and substantiated the evidence that a false positive test might be generated under certain conditions. The evidence by the chemical pathologist was that the sample provided by the employee produced a negative result, for any medical purposes, and also that breathalyzer tests were capable of producing false positive results in specified circumstances. There was no reviewable irregularity in the arbitrator’s assessment of the evidence.
Order: The application is dismissed with costs.
VAN NIEKERK J
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