IN THE LABOUR COURT OF SOUTH AFRICA

HELD AT JOHANNESBURG	                                          CASE NO: J1934/07; J2641/02;   J2522/01; JR2113/07                        
In the matter between:

SECURITY PATROL EXPERTS CC						         Applicant

and

THE COMMISSION FOR CONCILIATION,                                          
MEDIATION AND ARBITRATION					1st Respondent

COMMISSIONER N CELE							          2nd Respondent

ALFRED MOGALELE							          3rd Respondent

	JUDGMENT

FRANCIS J

1.	This is a supposed return date of a supposed court order that was supposedly granted by this Court on 21 September 2007.  I used the word supposed simply because no such order was granted by this Court on the said date. 

2.	The third respondent was employed by the applicant as a security guard.  He was dismissed by the applicant sometime in February 2000.  On 8 March 2000 he referred the unfair dismissal dispute to the first respondent, the Commission for Conciliation, Mediation and Arbitration (the CCMA) for conciliation and after conciliation had failed for arbitration. The matter was set down for arbitration on 13 March 2001.  The third respondent was represented by his former attorney L J De Jager.   There was no appearance for the applicant and a default award was issued on 26 March 2001.  The commissioner Advocate P E van Zyl who issued the award found that the third respondent’s dismissal was both substantively and procedurally unfair.  He ordered the applicant to pay the third respondent compensation of R22 338.24 which is the equivalent of twelve months remuneration which was payable within 30 days of the date of the award.

3.	On 25 June 2001 the third respondent’s former attorneys applied in terms of section 158(1)(c) of the Labour Relations Act 66 of 1995 (the Act) to make the award an order of court.  The application was filed under case number J2522/01.  The application was opposed by the applicant who was represented by the Combined Employers Organisation of SA (CEOSA) on 3 July 2001.  It was opposed on the basis that the applicant had already applied to the CCMA to have the default award rescinded.

4.	On 1 July 2002 the third respondent brought an application under case number J2641/02 to make the arbitration award an order of court in terms of section 158(1)(c) of the Act.  In a letter dated 22 July 2002, the Labour Dispute Management notified the Registrar of this Court that the third respondent had already submitted an application for the same matter under a different case number, J2522/01 on 25 June 2001.  

5.	On 21 August 2002 the arbitration award filed under case number J2641/02 was made an order of court in terms section 158(1)(c) of the Act.  On or about 11 September 2002 the  applicant filed a statement of case to rescind the default order in terms of section 144 of the Act.  It was contended that the order was erroneously sought and obtained by the third respondent since he had already made an application through his legal representative which was opposed by the applicant.  The applicant admitted having received the second section 158(1)(c) application and had referred the matter to its representatives.  A letter was sent to the Registrar on 22 July 2002 in terms of which the Registrar was advised of the first application.  It stated that the matter had been properly dealt with by the applicant and that it had complied with all the requirements.  It had applied to rescind the default award in terms of section 144 of the Act.    A notice of intention to oppose and an application to stay the award pending the outcome of the rescission application was filed.  

6.	CEOSA filed on 20 September 2006 a notice of withdrawal as the applicant’s representatives.  In the notice of withdrawal the respondent was cited as one Thembinkosi Sipuka and not as the third respondent.

7.	On 21 August 2007 the applicant applied for a case number to bring an urgent application for a stay.  The citation of the parties is the same as cited in the heading of this judgment.  J1934/07 was given as the case number.  On the same day the applicant also applied for a case number to bring a review application.  The parties were cited as the same and case number JR2113/07 was allocated.

8.	It appears that the third respondent issued a writ of execution.  The Deputy Sheriff of Roodepoort issued a “Return: Attempted removal dated 12 October 2007.  Reference is made to ‘SEE COPY OR ORDER ATTACHED’”.  There is also a letter from Blake Bester attorneys addressed to the Roodepoort Sheriff.  The reference given on the letter is “C POTGIETER/KS/GS0125”.  The letter reads as follows:
“Dear Sir,
RE: SPE//A MOGALELE
1.	We refer to the above-captioned matter.
2.	Please note that our client  obtained  it  provisional stay on 21 September 2007 and that the return date is 19 October 2007 and not 19 June 2007.
3.	We shall attend at the labour court in order to obtain a corrected provisional stay order and we shall forward same to you.  We are further attending at the Labour Court on 19 October 2007 in order to have the provisional order confirmed.
4.	We trust that you find the above in order and we shall revert back to you.”
Yours sincerely
                                                                    
CORIEN POTGIETER/KERRY STUART ”.

9.	The following order was attached to the letter:
	“IN THE LABOUR COURT OF SOUTH AFRICA
	(HELD AT JOHANNESBURG)
     Case No.: J1934/07
On the 21st day of September 2007
Before the Honourable Mr acting Justice Cele
In the matter between:
SECURITY PATROL EXPERTS CC						 APPLICANT
AND
THE COMMISSION FOR CONCILIATION,			   		 1ST RESPONDENT
MEDIATION AND ARBITRATION

N CELE (Commissioner)						  	2ND RESPONDENT
ALFRED MOGALELE						   	3RD RESPONDENT
                                                                                                                                                                  
	ORDER
                                                                                                                                                                  
Having read the documents and having considered the matter:
IT IS ORDERED THAT:
1.	A rule nisi is hereby and is herewith issued, calling upon the Respondents to show cause on 19 June 2007 at 10h00 or soon as the matter may be heard, why a final order should not be granted in the following terms:-
1.1	The arbitration award issued by the CCMA under case number GAJB19599-07 is stayed pending the finalisation of the review application brought by the Applicant under case number JR2113/07 before the Labour Court.
1.2	The rule nisi issued in terms of clause 1.1 as set out above shall operate as an interim order with immediate effect, pending the return date.
1.3	There is no order as to costs.
BY THE COURT
2007-09-27
REGISTRAR”.

10.	The third respondent had by chance enquired from the Sheriff about the progress of the matter and was advised to appear in court on 19 October 2007.  The third respondent did so as advised by the Sheriff.  He appeared in Court on 19 October 2007 and was advised that no such matter had been enroled on the said day.  The matter was called on 19 October 2007.  There was no appearance by the applicant.  The court stood the matter down until 12h30 and issued an order that the senior partner, Pieter Abraham Lodewyk and C Potgieter of Blake Bester Attorneys, must appear in court 2 on 19 October 2007 at 12h30 to show cause why their conduct should not be referred to the relevant Law Society and the South African Police Services.

11.	There was partial compliance with the court order in that Blake Bester (Bester) and Kerry Stuart (Stuart) a candidate attorney appeared in court.  Potgieter was on study leave.  The matter was postponed to 22 October 2007 after the court was informed that the application to stay the writ of execution was moved by advocate E Tchwane (Tchwane) who could not be contacted due to the short notice of the court order.  Bester was excused from attending further proceedings.  It was pointed out to the applicant’s representatives that court file number J1934/07 was empty and that no endorsement of the order was made on the court file as was the practice.  The only document that was in the court file was an application for a case number in an urgent stay application.

12.	The third respondent appeared in court on 22 October 2007.  Stuart was in court and so was attorney de Kock.  Stuart informed the court that she had left a message over the weekend for Tchwane to call her but that he had failed to do so.  She gave this court an account issued by Tchwane which states that he is from the Bridge Group of Advocates.  The registrar called them and was informed that he is unknown there.  Stuart also informed the court that she had initially briefed advocate Sissy Baloyi (Baloyi) who had told her that she was in court on 21 September 2007 but had then passed the brief over to Tchwane.  She told the court that she had spoken to Baloyi on the same day when the court had adjourned.  Baloyi denied that she had spoken to Stuart on that day and had not been briefed in the matter. She did not know Tchwane at all.  She had appeared in two matters where she had been briefed by Blake Bester attorneys and the last time that she had dealings with Stuart was towards the end of June 2007.  Stuart insisted that she had spoken to Baloyi on the same day.  The Court then issued an order that  Tchwane appear on 23 October 2007 and that the applicant must provide proof either in writing or orally that it was represented in court on 21 September 2007.  A copy of the order had to be served on Tchwane either by the registrar or the applicant’s attorneys.  The applicant’s attorneys elected to do so.

13.	The matter proceeded on 23 October 2007.  Tchwane did not appear in court.  The court then decided to hear testimony under oath.

14.	The first person who testified in this matter was the interpreter Paul Ramasodi (Ramasodi).  He testified that he is employed as an interpreter for about eight years.  He could not recall clearly whether he was an interpreter on 21 September 2007.  However his recollection is that a lady wanted to bring an application to stay a writ.  Acting judge Moshoana was in court 2 and had refused to entertain the matter.  She wanted to submit why she had to bring the urgent application.  Acting judge Moshoana told her that since the matter was not on the roll and she had come late that he would not be hijacked to hear the matter.  He then asked about her right of appearance.  She told him that she was a candidate attorney and he told her that he could not hear her.  She then asked to be excused and he told her to go out.  Ramasodi then left court 2 and found the lady sitting on the bench outside court.  She was speaking to a person on the telephone and was crying.  He did not know her name but pointed her out in court as Stuart.  This happened during the afternoon.  During cross examination by De Kock, Ramasodi insisted that he was in court when the matter was called on the Friday.  He recognised her when she came to court on the 21 October 2007 but had not been asked to identify her.  He recalled the matter because of the questions that the court had raised in the matter.  

15.	The third respondent also testified.  He denied that he had received a copy of the urgent application to stay the writ.  His current address is 54 Smuts Street, Northcliff and has been residing there since 1999.  He worked for the applicant for nine months and was living at the same address.  The award was made an order of court on 21 August 2002 and he was still living at the same address.  The fax number 011 354 3243 to where the urgent application was faxed to, is not his and he had at no stage any.  He was employed as a security guard.  He has never lived at 690A White City Jabavu and does not even know where it is.  He was told by the Sheriff to come to court.  He did not appear in court on 21 September 2007 because he did not know that the matter was enroled for a hearing.  During cross examination he confirmed that he worked for the applicant for nine months.  He started in April 1999 and moved to his current address in January 1999.  Before that he was living in Maraisburg at 2nd Street - 15th.  

16.	The third witness who testified in this matter was Patrick Botha who is employed as a judge’s associate.  He testified that he worked during the third term with acting judge Moshoana.  During the week of 17 September to 21 September 2007 acting judge Moshoana was the judge who dealt with urgent matters.  Ramasodi was the interpreter in court 2.  The matter was not on the roll on that day.  He had seen Stuart before but did not recall if she appeared in court on 21 September 2007.

17.	The fourth witness who testified in this matter was Nellie Ntuli (Ntuli).  She is the registrar of the Labour Court.  On 19 October 2007 at about 9h00 she was told by Juliet Dakata that she was doing office work when the third respondent approached her and told her that his matter was set down for 19 October 2007.  She had two files with case numbers J1934/07 and J2113/07 that only had two applications for case numbers in it.  In file number J1934/07 there was nothing written on it.  When an order is made by a judge, it is written on the court file or reference is made to a draft order on it.  She and the typist then checked the court roll for the 19 October 2007 and saw that the matter was not on the roll.  There was a letter from Blake Bester attorneys dated 12 October 2007 to which I have referred in paragraph 8 above.  She saw that it was stated that the matter was heard on 21 September 2007 and was returnable on 19 October 2007.  She then examined the roll of 21 September 2007.  The matter did not appear on the court roll for that day.  Acting judge Moshoana was in motion court.  The court order indicated that acting judge Cele heard the matter.  He was in Durban during that week.  She also examined the duty roster that also confirmed that acting judge Cele was in Durban that week.  She then telephoned Blake Bester attorneys and spoke with one Ella.  She asked to speak to C Potgieter and was told that she was appearing before me in the trial court.  She told her that I was in motion court and she was given one Lindy’s cell number but the phone just rang.  On the 23 October 2007 she spoke with Baloyi who told her that the last case she dealt with for Blake Bester Attorneys was in June one of which was the Fidelity matter.  She denied that she had spoken to Stuart on 22 October 2007 and the last time was in June 2007.  She did not know an Tchwane and was not in court on 21 September 2007.  

18.	Ntuli testified further that she had called the number given for Tchwane but was told that they did not know him.  She also telephoned the General Bar Council and the Johannesburg Bar Council and he is unknown to them.  She confirmed that the signature appearing on the court order is hers but did not know how it got on it.  She did not see the original court order.  The typing fonts is not that of the Labour Court typist.  Juliet Dakata deals with urgent applications and allocates dates.  She denied that she signed the said order and she raised this matter with the court because of her signature appearing on the court order.  During cross examination Ntuli confirmed that she had said that when an order is made it is written on the court file.  Ramasodi had said that acting judge Moshoana said that he was hijacked to hear the matter.  She was asked whether he would not have noted it on the court file and she said that she did not know.  She did not know whether the matter was struck off or was dismissed.  She confirmed that the signature on the court order looked like hers but did not know how it got there.  The typing was not their fonts. 

19.	Juliet Dakata (Dakata) testified as the fifth witness in this matter.  She is employed as the registrar’s clerk and deals with urgent applications.  A party must arrange a date and time with her.  The date arranged was 21 September 2007 but no time was indicated on the application.  She saw it on 19 October 2007 and asked Ntuli whether the matter was set down when the return date was 9 June 2007.  Ntuli examined the court roll and asked how it could be signed when the return date was 9 June 2007.  It was clearly a mistake and she said that she did not sign it.  She knew about the matter when the third respondent arrived at court on 19 October 2007.  If an order is granted it is taken to the typist and then to Nathi when there is a return date.  During cross examination Dakata said that she did not make a note of an urgent date.  If there is no date she would ask the parties who had arranged the date for them.  She does not recall that the first dated given for the urgent application was 23 August 2007 with a return date of 17 September 2007.

20.	Kerry Stuart was the sixth witness in this matter.  She is employed by Blake Bester attorneys as a candidate attorney since November 2005.  She knows that candidate attorneys cannot appear in the Labour Court.  She had received a labour instruction in this matter from Louis Lamprecht the human resources manager of the applicant.  He had told her that the sheriff was there on 16 August 2007 and had served a writ.  He instructed her to bring an urgent application to stay the writ and a review application.  The writ was forwarded to them.  She contacted Lamprecht and told him that she needed information from the CCMA and that they should get her the CCMA case number.  She gave him the fax number and drafted the document.    They attended the Labour Court and the first date given was 23 August 2007 with 17 September 2007 as the return date.  They attempted to serve the application on the third respondent but the fax number was said not to exist.  She then contacted the applicant and said that they needed a valid address.  The applicant said that he would get back to her.  They gave her the White City Jabavu address and the review and application to stay was served on the address.  This was given to Legal Logistics to serve.  She was told that there was no one at the address and a copy of the document was left at the door.  An affidavit to that effect was drafted.  She then attended the Labour Court and was given the date of 21 September 2007 with a return date of 19 October 2007.

21.	Stuart testified that she telephoned Baloyi to attend to the matter.  She did not recall how the matter was given to her.  She did not seem to have a brief in her office file.  Baloyi told her that she would do it.  Baloyi then called her and told her that she could not do it but was in court 2 and asked whether she could pass it on.  She agreed.  She then told her that she had passed the matter to Tchwane and that the order was granted.   Stuart said that the order was granted and that she would have to attend to it.  The next week there was one copy of the order in the file.  She gave revenue stamps and made a photo copy and forwarded this to the sheriff.  She heard from the sheriff that the return date on the court order was wrong.  She then went to the Labour Court and told the typist that it was incorrect and that she could not serve it unless it was corrected.  She was told to get the court file.  She could not find it and went to the Registrar and told her that the court file was missing.  They looked for it and it was not on the roll for the 19 October 2007.  She was told that the file would have to be reconstructed but that they could not make a duplicate.  She told the sheriff that it was not on the roll and that she would have to rectify it.  She was the contacted on 19 October 2007 and was told to be in court on the same day.  She came to court with Bester to give information on the matter.

22.	Stuart denied that she appeared in court on 21 September 2007.  They have counsel at their disposal and she had never done this before.  The interpreter was mistaken when he said that she was in court on 21 September 2007.  It was not the first labour matter that she has dealt with and knows that she cannot appear in the Labour Court.  She has now seen that there is no time specified in the application and it was an error on her part.  When she got the file it had all their documents in it.  She was told by the registrar that there was nothing written on the court file.  She does not know why it was taken out of the court file.  She had the wrong service address of the third respondent.  The application was not served on him and the address was obtained from the applicant.  It was only the Sheriff who received the defective order.  She could not imagine why Baloyi denied that she had spoken to her and it is beyond her comprehension.  She could not explain why she said that she did not hear from her.  She denied that she had not contacted her.  She was going to deal with the application to stay.  She had received an email from E Tchwane which had an attachment on it.  The K52 is the inbox at Blake Bester attorneys.  She had spoken with Tchwane on the phone and had left a message on his voice mail.  He has not returned to him.  She did not think that she had to check on his authenticity.  She thought that the interpreter was mistaken about her.  She was not in the Labour Court and would assume that it was a question of mistaken identity.  She was shocked and could not get hold of Tchwane.  

23.	Stuart was asked by the Court why Baloyi would lie.  She said that she was not lying and had spoken to Baloyi who told her that she had given it to another counsel.  She said that she was sticking to the truth.  She was asked why Tchwane would disappear from the face of the earth.  She said that there was something not right about him.  She was asked why the matter was not recorded on the court system for 21 September 2007.  She said that she got the date from Dakata and could not explain why it was not on the court roll of 21 September 2007.  To the best of her knowledge the matter was heard on that day.  She had attended court the next Friday that was 28 September 2007 and received a call from the Sheriff and she told him that she would get the order.  She made a copy of the court order and the original application was in the court file.  She did not know whether the order was authentic.

24.	The matter was postponed to 26 October 2007 for judgement.  Later that day advocate M  van As called.  He said that he was with Stuart and Coleen Potgieter and wanted to know whether an affidavit could be filed.  I agreed that it could be filed.  Advocate van As called at my chambers accompanied by Potgieter and Stuart when the affidavit was handed in.  I had pointed out that I believed that Tchwane was the figment of somebody’s imagination.  I stressed that telephonic records would have to be obtained that would record whether any calls were made to advocate Baloyi from the Court.

25.	The registrar was instructed to request the applicant’s attorneys to make the messenger of Legal Logistics available to come to court to testify on 26 October 2007.  Advocate van Reynecke SC appeared for Blake Bester attorneys and advocate van der Merwe appeared for Stuart.  Baloyi also appeared.  She testified that she is an advocate of the Johannesburg Bar council and is based in Sandton.  She had read the affidavit deposed to by Stuart.  She has appeared in two matters on 30 June 2007 before acting judge Ngalwana and before judge van Niekerk.  The one matter was a postponement.  The one matter was Fidelity Patrol and the other was the Scholtz matter.  In the Scholtz matter she had received a proper brief with two arch lever files and a brief cover.  She had received these matters from Stuart.  She was asked if she could get a postponement in the matter.  Their offices are in Rosebank and she went to pick up the file on 30 June 2007.  In the main matter there was a proper brief with a full set of papers and a brief cover.  She did not recall if there was a Memorandum to Counsel.  In the second matter there was a set of papers.  After that she had no further dealings with Blake Bester attorneys again.  

26.	Baloyi testified that on 22 October 2007 she received a message from the Registrar to call her to speak to her about the matter.  On the same day she got a call from the Registrar who said that she was in court.  Stuart then asked her if she remembered that she had been briefed in the matter.  She told her that she had said that she did not know off the advocate in this matter.  She then went into her June 2007 fees book and this shows that the last matter that she dealt with was on 30 June 2007.  She did not pass over any matter to anybody.  Stuart insisted that she had spoken to her about 20 minutes ago on 22 October 2007.  She had asked her whether it was from a cell phone and she said that it was from a land line.  She  denied that she was in court on 21 September 2007 and could not have passed the matter on.  She had picked up the documents on 30 June 2007 and did not know why it was alleged that she was briefed.  She does not know who Tchwane is.  When she is briefed and is unable to deal with the matter, she would tell the attorney that she cannot deal with the matter.  She would then give it to somebody.  With the Scholtz matter she could not proceed and got a postponement.  When Stuart called her she was not available and asked her if she did not mind to give it to somebody and she said that she did not mind and she gave it over to somebody.  Where she had more than one matter, there was no need to pass it on.  The rules do not allow her to pass it to anyone.  She must inform the attorney and if the attorney agrees she can pass it on.  There was no basis for the allegations made by Stuart. She did not speak to Stuart on 21 September 2007 nor did Stuart speak to her on that day.  She had not been briefed in this matter.  She had looked at her diary for the 21 September 2007 and saw that she had no commitments for the day in question.  Her diary was clear.  She has no idea why she said that she was briefed.  

27.	Advocate van Reynecke said that he had no question to put to Baloyi.  He said that they accepted her integrity completely in view of their own investigations.  They had examined the personal computer of Stuart during the evening and morning.  There were two deleted files and a computer expert discovered that the account by Tchwane was generated from Stuart’s computer.  There is no evidence that Tchwane exists and there was no record that advocate Baloyi ever collected the documents.   The account was generated on 22 October 2007.  Stuart was suspended with immediate effect and the matter would be referred to the Law Society.  They would prepare the necessary statement. Mr van der Merwe declined to question Baloyi and said that Stuart would invoke her right to silence in terms of section 35(3) of the Constitution.  

28.	The last witness to testify in this matter was Herman Matabane.  He is employed as a deliverer for Legal Logistics for the past eight years.  He deposed to an affidavit on 23 October 2007.  He went to Sandton on Monday, 22 October 2007 before lunch.  When he arrived there, he  delivered the order that he left at the reception.  He said that it was for the attention of  Tchwane.  He did not ask to speak to Tchwane.  He renders services only for attorneys and had received an envelope from Blake Bester attorneys.

29.	The issue that arises in this matter is whether this Court issued the order it is alleged to have issued on 21 September 2007.  Several factors suggest that the order was not issued by this Court at all.  These are the following:
29.1	The Court order states that the matter was heard by acting judge Cele.  Acting judge Cele was not in Johannesburg for that week.  This is confirmed by the duty roster that showed that he was doing duties in Durban.  Acting judge Moshoana did motion court duties during that week in Johannesburg.

29.2	There is the direct testimony of the interpreter who explained to this Court what he remembered about the incident involving Stuart on 21 September 2007.  The matter had not been enroled for a hearing and the court was confronted in the afternoon about the urgent application.  The court felt that it had been hijacked and when it discovered that the applicant’s representative was not an attorney but a candidate attorney refused to hear her.  She left the court room and was found crying outside the court while she was on her phone.
29.3	If the application was moved by  Tchwane, it would have been recorded.  There was no trace that the matter was recorded on 21 September 2007.
29.4	Tchwane who would have moved the application has now disappeared without any trace.  He is not known either to the General Bar Council or the Johannesburg Bar Council.
29.5	Stuart had stated that she briefed Baloyi to move the application.  She could not give this Court any prove that she was indeed briefed.  She did not remember how she briefed Baloyi but had said that she had spoken to her telephonically.  There is no record of the said telephone call that she had with Baloyi.  I would have expected that such a call be recorded since this has costs’ implications.  There is no Memorandum to Counsel.  There is also no further recordal of the telephonic discussion that Stuart had with Baloyi on 21 September 2007.  There is also no record of the telephonic discussion she had with Tchwane on 21 September 2007.

29.6	Stuart insisted that she had spoken to Baloyi on the day when she was briefed to appear in the matter and later in the day when Baloyi told her that she was in court 2 but had decided to pass the matter to Tchwane.  She went on to say that she spoke with advocate Baloyi on 22 October 2007 that Baloyi vehemently denied.  For some reason Stuart cell phone was unable to record that she had made such a call.  Baloyi testified that she had no commitments on the 21 September 2007 and would not have passed the matter on to Tchwane whom she does not know.  Baloyi’s version is preferred to that given by Stuart.  She was not briefed and was not called by Stuart on 22 October 2007 during the court adjournment.
29.7	The account that was allegedly issued by Tchwane was generated from Stuart’s computer on 22 October 2007.  This was three days after this Court conducted the enquiry.  This confirms that Tchwane did not move the application and Baloyi was not briefed in the matter.
29.8	The only document that appeared in the court file was an application to stay the writ pending the outcome of the review application.  There was no trace of the original court order or the court application.
29.9	The application to stay the writ and the review application was served on an address in White City Jabavu when the third respondent’s address must have been known to the applicant and was an address in Northcliff.
29.10	The return date on the court order is 9 June 2007.  The applicant’s representative told the sheriff that the date was incorrect and that it was 19 October 2007.  There was no appearance by the applicant on 19 October 2007.   

30.	There are huge chunks in Stuart’s version.  She has deliberately lied to this Court in an attempt to mislead this Court about whether the order was made by this Court.  She had attempted to cast aspersions on the integrity of Baloyi that was clearly unfounded.  There are material differences between her explanations to this Court, her testimony in Court and an affidavit to which she has deposed.  A transcript of the proceedings will bear out all the contradictions.

31.	Stuart is a scheming and conniving person who on the face of it has committed fraud and perjury.  As an officer of this Court she has failed to assist the court in arriving at the truth and persisted with her blatant lies.  Stuart had many opportunities to come clean with this court.  She could have done so on 19 October 2007 when she was asked about this.  She blamed Tchwane for this.  She then shifted the blame to Baloyi who I found to be a credible witness when she testified.  She then went to the extent to manufacture the account from her own computer and when the net was tightening against her deleted the document from her computer.  Thanks to modern technology the document was found to have been generated from her own computer.  The court takes a very dim view of representatives who deliberately mislead the court.

32.	Stuart has not acted as an officer of this Court.  She has perjured herself when she testified under oath in court.  She then consulted with advocate Van As and than handed up an affidavit.  She has deviated from her testimony in court.  This is a sad state of affairs.  She was extremely vague about how she had briefed Baloyi.  She had undertaken to look for a Memorandum to Counsel but did not find one.  This is hardly surprising.

33.	I trust that the Law Society for the Northern Provinces or the relevant one for that matter will investigate the matter and take firm action against her and any other person who might have helped her in conniving to mislead this court.  I trust also that the South African Police Services and the Director of Public Prosecutions will pursue this matter against her and any other person who might have been involved in this.	

34.	The judiciary is under constant scrutiny and is at times subjected to unwarranted criticism.  The hallmark of any practitioner or representative for that matter who appears before this court or any court for that matter is honesty and integrity.  These are the traits that Stuart lacks and is in my view not a fit and proper person to be admitted to this noble profession.  The profession can do without people like her. 

35.	The third respondent who is the poorest of the poor has been denied for six years the right to enjoy the fruits of his award.  I was assured that the applicant has all intentions and purpose to settle the dispute with the third respondent.  I hope that they have now done so. 
 
36.	In the circumstances I make the following order:

36.1	The court order marked “annexure A” was not issued by this Court on 21 September 2007.

36.2	The registrar must submit a copy of this judgment, with the court order marked “A”, a transcript of the court proceedings of 19, 22, 23, 24 and 26 October 2007 and the affidavit deposed to by Kerry Stuart on 24 October 2007 marked “B” to the Law Society of the Northern Provinces, the Director of Public Prosecutions and the South African Police Services for further investigation into the conduct of  Kerry Stuart.

                    
FRANCIS J

JUDGE OF THE LABOUR COURT OF SOUTH AFRICA

FOR THE APPLICANT		:	ADVOCATE REYNECKE SC FOR BLAKE BESTER ATTORNEY AND ADVOCATE VANDER MERWE FOR KERRY STUART 

FOR THIRD RESPONDENT	:	IN PERSON	

DATE OF HEARING		:	19, 22, 23, 24 26 OCTOBER 2007

DATE OF JUDGMENT		:	4 DECEMBER 2007