Pretoria - A judge was outraged by the conduct of lawyers and advocates, including Unisa’s acting head of legal services, that he “borrowed” from Shakespeare’s play Hamlet to express his feelings.
In referring to the two cases brought before him – one by Unisa and the other by the Limpopo Department of Justice – Judge Smanga Sethene said: “Undoubtedly, both applicants were ‘hoisted with their own petard.’”
Both applicants, as he put it in his Johannesburg Labour Court judgement, had brought “absolutely hopeless” urgent applications to stay writs of executions. Both cases were struck off the roll.
Judge Sethene ordered that the lawyers and advocates, who represented Unisa, and the department, be barred from charging their clients legal fees. If they had already been paid, they should pay the money back within 60 days, the judge said.
He also ordered the Legal Practice Council (LPC) to investigate the conduct of Professor Vuyo Ntsangane Peach, the acting head of Unisa’s legal services, as to whether he sought to mislead the court in respect to some of the details contained in an affidavit before court.
Regarding Peach’s affidavit, the judge remarked that he was “a stranger to the truth”. “Or perhaps, Prof Peach deliberately meandered into amnesia as a tactic to deceive the court.”
Both applications landed before the court as urgent applications, as in each case the sheriff was about to attach the assets of the applicants to pay for debts incurred after earlier court orders.
In Unisa’s case, Dr Marcia Socikwa had taken the university to the Commission for Conciliation, Mediation and Arbitration (CCMA) when her contract was not renewed as the vice principal: operations and facilities.
It was found that Socikwa’s dismissal was substantively and procedurally unfair, and she was awarded compensation of R1 271 964.72, equivalent to six months’ salary.
She never received the money and obtained a writ of execution to sell Unisa’s movable assets to recover it.
But as the sheriff proceeded do so, Unisa rushed to court to stay the writ. It said that there was a pending review application against the order awarding the compensation. While Unisa did file such an application earlier, nothing ever came of it, thus the CCMA award was still in place.
More startling, the judge said, was that at the resumption of the urgent court proceedings, Unisa’s counsel informed the court that he had taken instructions from his attorney that Unisa was applying for its own urgent application to be struck off the roll with costs. “That was but a startling new application by Unisa without papers,” the judge said.
He also frowned on some of the submissions made by Peach to the court regarding the matter.
The second case concerned an administrative clerk at the Polokwane Magistrate’s Court, who was fired because she refused to move to another section as per the court’s rotation policy as she said this disadvantaged her in her studies.
The department was ordered to reinstate her after arbitration. When this did not happen, she obtained a writ to attach four of the department’s cars to secure compensation.
In this case, the department also rushed to court to stop the sheriff from taking the cars, claiming review proceedings were underway. It turned out there was no such application.
Judge Sethene, in no uncertain terms, questioned how counsels could have taken on the cases, knowing that they were doomed in law and hopeless.
“Where a hopeless case is brought with the assistance of the advocate, the advocate must either be bringing it in the knowledge that it is hopeless, or believing that it is not hopeless (and therefore incompetent) or not caring whether it is hopeless (and therefore guilty of recklessness or gross negligence),” the judge said.
Pretoria News