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Mekgwe and Another v EDUSAF (J5180/00) [2001] ZALC 214 (26 November 2001)

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IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT JOHANNESBURG

CASE NO J5180/00

In the matter between :

NTSIMANE MEKGWE & THOMAS MUDAU Applicant

and

EDUSAF Respondent

______________________________________________________________________

JUDGMENT

______________________________________________________________________

WAGLAY J

This matter was set down for trial for today. When the trial roll call was called, as is the practice in this court, at 9h45 there was no appearance on behalf of the respondent. I then stood the matter down.

I was later advised that the respondent’s attorneys had forwarded letters to this court advising that it had withdrawn as attorneys of record.

The letters record the following :

Letter 1

“1 The above matter refers

2 We hereby wish to inform you that Hofmeyr Hebstein &

Gihwala Inc hereby withdraws as the respondent’s attorneys of record herein.”

Letter 2

We encloses herewith two telefaxes for the court file; the contents whereof are self explanatory.

The matter is on the roll for today, 26 November 2001.

The telephone and fax number of the S A Scooter and Transport Workers Union is continuously engaged.

The Labour Court’s telephone number rings continuously and nobody answers.”

Letter 1 was also forwarded to the applicants representative.

I am surprised that a legal representative could believe that by simply forwarding a letter on the date of hearing its responsibility comes to an end. Where a matter has been set down for trial it is incumbent on the legal representative to ensure that it timeously decides whether or not it shall assist the party it has undertaken to represent, where it is unable to decide prior to the date of the trial it is obliged to come to court and ask the court to be excused . It cannot simply stay away as has been done in this matter. To stay away is to show contempt for the court and this behavior shall not and will not be tolerated.

Furthermore I fail to understand the practice of writing letters to the court.

Are Judges suppose to read these letters ? The court is not here to entertain any correspondence. Letters written to the court should and will be disregarded. Attorneys may correspond with the registrar but not with the court.

Here the attorney did not have the courtesy of filing a Notice of Withdrawal as Attorney’s of record nor is there anything to indicate to me that its client is aware that the trial is to be heard today.

If attorneys fail to withdraw timeously which should in my view be at least five working days before a hearing they must present themselves in court and ask to be excused . Where attorneys withdraw timeously they must still satisfy this court, albeit by simply recording on their Notice, that they have advised their clients of the date of hearing and provide proof of service of the notice upon their client.

Since the attorneys mentioned above have done nothing in this matter to satisfy me that the client was aware of the trial being heard today, I have decided to postpone the matter sine die. I believe that the attorneys should therefore pay the costs de bonis propiris but before making such a costs order , I will afford them an opportunity to make such submission as they deem expedient as to why this court should not make such an order.

The order of this court is therefore :

That the matter is postponed sine die.

That Attorneys Hofmeyr Herbstein and Gihwala Inc (Hofmeyers) are called upon to show cause why, on 6 February 2002 at 10h00, they should not be ordered to pay the costs occasioned by this postponement de bonis propiris

That Hofmeyers must at the same day (6/02/02) provide an explanation on affidavit, for their conduct

in this matter relating to their failure to attend court on 26 November 2001.

________________

WAGLAY .J

26/11/2001