Nkwe v SA Taxi and Another (J 278/22) [2022] ZALCJHB 191 (21 July 2022)

THE LABOUR COURT OF SOUTH AFRICA, JOHANNESBURG

Not Reportable

Case no: J 278/22

In the matter between:

BRIAN NKWE

Applicant

and

SA TAXI

First Respondent

JEAN DU RANDT N.O

Second Respondent

Heard: 20 July 2022 (Considered in Chambers).

Delivered: 21 July 2022

Summary: Urgent application dismissed. Issue of costs remained – affidavit by a Labour Consultant. Court not satisfied that the consultant should be liable for the costs. Applicant liable to pay the costs of the application. The Legal Practice Council should investigate the conduct of an attorney who assisted on the sideline.

Held: (1) The applicant to pay the costs of the application. Held: (2) The Legal Practice Council (LPC) to investigate the conduct of the sideline attorney. Held: (3) The Registrar to place a copy of this judgment with the Secretary of the LPC

JUDGMENT – COSTS LIABILITY

MOSHOANA, J

Introduction

[1] On 15 March 2022, in an ex tempore judgment, this Court dismissed an urgent application brought by Brian Nkwe (Nkwe). This Court took a view then that an order of costs was warranted. It further took a view that one Bongani Msomi (Msomi) of Msomi and Associates as a representative recklessly advised Nkwe to launch what stood as a frivolous and vexatious application. Minded to hold Msomi liable for the payments of the costs, this Court afforded him 14 days, within which, to show cause why he or his business should not be liable for the costs of the application. Msomi indeed delivered an affidavit stating the reasons why he should not be liable for costs. The respondent, S A Taxi (Taxi) also delivered an affidavit persisting that Msomi should be held liable. What follows hereunder is the ruling of this Court on the issue of the liability for costs.

Background facts

[2] A detailed exposition of the facts appertaining this matter is not necessary at this point. It suffices to state that Nkwe, “unassisted

legally”, launched an urgent application seeking to interdict a continuation of a disciplinary enquiry, which was scheduled on 14 March 2022. The application was duly opposed by Taxi. After hearing argument, this Court dismissed the application. As pointed out above, the issue of who is liable to pay the costs remained hanging. During argument, it emerged that, although Nkwe signed his own papers, Msomi effectively acted as a representative of Nkwe. Owing to such emergence, this Court issued the order[1] it did on 15 March 2022.

Evaluation

[3] This Court must be quick to point out that senior employees approach this Court under the banner of alleged unlawfulness seeking to forever trouble the urgent Court with a plea to halt internal disciplinary hearings. A consistent approach has been adopted by the judges of this Court that such employees deserve to be mulcted with cost orders. It became obvious that such employees are using the judiciary to micro-manage internal disciplinary hearings. In a slew of judgments, this Court warned litigants and practitioners alike that costs orders would be made.

[4] Having said that, this Court does appreciate the guidance provided by the Constitutional Court when it comes to awarding costs in the Labour Court. However, section 162 of the LRA decrees that the Labour Court may make an order for the payment of costs according to the requirements of the law and fairness. Subsection (2) of section 162 further decrees that when deciding whether or not to order the payment of costs, the Labour Court may take into account – the conduct of the parties in proceeding with the matter before Court. In Sihlali and 96 others v City of Tshwane and another[2], this Court issued a clear and stern warning that in the absence of exceptional circumstances, the urgent Court should not be approached

because the risk of costs being awarded is more surreal than illusionary[3].

[5] In my view, a party who approaches the urgent Court seeking to halt an incomplete hearing whilst bereft of exceptional circumstances conducts himself or herself in a frivolous and vexatious manner. Nkwe was frivolous and vexatious. The newly crafted strategy is for a party to launch a review against one or two rulings made at the internal hearings and immediately thereafter seek an interim relief pendente lite. Nkwe employed the selfsame strategy. The relief he sought to halt the disciplinary hearing was to pend an application he launched in this Court.

[6] I again take this opportunity to warn litigants and practitioners alike to desist from employing this strategy. It is a fatigued strategy. A pending application[4] does not create a right be it prima facie or a clear one. The legislature made its voice loud and clear when it inserted section 158 (1B) into the LRA in 2014. The message is clear that piecemeal approach of this Court is discouraged by all accounts. The majority of applications gracing the urgent Court, although as unwelcomed guests, fail dismally to exhibit exceptional circumstances. They remain a classical example of piecemeal

litigation albeit armed with the newly crafted strategy of pendente lite.

[7] Section 162 (3) of the LRA empowers this Court to within its discretion order that any person who represented a party pay the costs. As indicated earlier, it emerged from the submissions by Nkwe that Msomi represented him. It was for that reason that this Court was minded to mulct Msomi with costs. There is a developing trend, which ought to be nipped in the bud, that because the LRA does not afford labour consultants the right of audience, some consultants represent parties’ surreptitiously. In order to secrete their devious conduct, they avoid signing the Court papers or placing themselves on record. Once the veil is pierced, it becomes clear that the labour consultant represents a party. Msomi in his current affidavit distanced himself from the representation part. Instead, he disclosed that an attorney, Ms Ipeleng Mompati (Mompati), advised in the matter. Despite having disclosed in Court that Msomi assisted him, Nkwe confirmed the version of Msomi that Mompati assisted him. Mompati herself confirms this. In the circumstances, Msomi cannot be ordered to pay the costs.

[8] Of grave concern to this Court is the conduct of Mompati, which come to the attention of this Court ex post facto. Mompati prepared the Court papers. As to why did she not sign the notice of motion, it remains unclear. It is inappropriate and

actually unethical in my view for an attorney to prepare Court papers and thereafter make a litigant to sign those papers. It seems to me that the only reason why Nkwe was not represented before me on the day was that he did not have the funds to pay for Court appearance. The question is was Mompati paid for preparing the Court papers. Having prepared the Court papers, why did she not sign the notice of motion? In my view, it is appropriate, in the circumstances, for the Legal Practice Council to conduct further investigations into the conduct of Mompati. The consumers of legal services do not deserve the treatment Nkwe received. He was made to appear in Court to defend Court papers not drafted by him. Consumers of legal services deserve a fair treatment.

[9] In the results, I make the following order:

Order

1. The applicant (Brian Nkwe) should pay the costs of the application dismissed by this Court on 15 March 2022.

2. The Secretary of the Legal Practice Council should conduct an investigation into the conduct of attorney Ipeleng Mompati, practicing as such under the name and style of Mompati Attorneys.

3. The Registrar of this Court is directed to lodge a copy of this judgment with the Secretary of the Legal Practice Council.

G. N. Moshoana

Judge of the Labour Court of South Africa

Appearances:

None.

[1] It is unnecessary for the purposes of this judgment to outline the exact terms of the order.

[2] (2017) 38 ILJ 1692 (LC).

[3] Paragraph 29 of the judgment.

[4] See National Treasury and Others v OUTA and others 2012 (6) SA 223 (CC) para 50. “The right to review the impugned decisions did not require any preservation pendente lite.”