Minister’s lawyers hit with personal cost order

A Johannesburg-based law firm, on record for the state, has been slapped with the costs of a failed civil suit after the presiding judge slammed the attorneys on record for their “serial negligence”.

Acting Judge Stephen Hardie – sitting in the Labour Court, in Johannesburg – last month dismissed a review application brought by the Minister of Water and Sanitation Lindiwe Sisulu, saying proceedings had become “a complete waste of the court’s time” and placing the blame squarely at the feet of the Koikanyang Inc Attorneys.

Last week, the judge went a step further and made a ‘de bonis propriis’ (out of one’s own pocket) order against the firm.

“The [minister’s] review application was stillborn and fell to be dismissed, directly as a result of the [minister’s] attorneys having conducted themselves in a seriously negligent manner,” he said in handing down his ruling.

The case before the court was, in essence, an application to review and set aside a Commission for Conciliation, Mediation and Arbitration (CCMA) award in terms of which the minister was found to have unfairly discriminated against an employee and directed to hike up that employee’s salary.

Acting Judge Hardie in dismissing the application identified a number of issues with the way in which the minister’s lawyers handled the case – chief amongst them that repeated requests for the record of proceedings at the CCMA, were effectively ignored.

“Had they [the minister’s legal team] read the legislation relating to Labour Court reviews, and the case law relating to it, and taken seriously the … respondent’s protestations, that they had not compiled a competent review record, their client, the [minister], may have had an opportunity to successfully review the arbitration award in question,” the judge said last week, “Not only was the [minister] done out of that opportunity by the [minister’s’] attorneys’ serial negligence, but the taxpayer has had to fit their bill”.

He described the approach taken by the minister’s lawyers as “self- centred” and said their actions appeared to “smack of negligence of a serious degree”.

In addition to lumping the firm with the costs incurred by the respondents in the case, he recommended that the minister look into recovering any monies she had paid it. He also referred his judgment to the Legal Practice Council.

Paul Hoffman, an advocate as well as chief executive officer and director of Accountability Now, welcomed the court’s move.

“The courts, for a very long time, reserved to their discretion the power to mark their disapproval of the conduct of the legal representatives by milking them in punitive costs, which is what has happened here, correctly so in my view,” Hoffman said.

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