We live in a time where it is not unprecedented for parties to refer labour disputes to the Courts, CCMA or Bargaining Councils. Daily, parties disagree, and labour disputes arise (whatever the reason may be), and this will surely happen in the foreseeable future as well. With the number of labour disputes being referred and the strict labour law legislation in South Africa, employers tend to make use of the service of “labour law experts” to assist accordingly. The same can be said for employees who also use the service of “labour law experts” to assist with their disputes. With the number of labour disputes these days, a situation may occur where a party to the dispute refers a frivolous or vexatious dispute.

The Courts have taken a firm stand on frivolous and vexatious disputes being referred and have awarded cost orders against guilty parties. In Marib Holdings (Pty) Ltd v Parring NO and Others, the Court considered the meaning of “frivolous, vexatious or without merit”. When examining the meaning, the Court reiterated that “frivolous” usually refers to a contemptuous attitude adopted by a litigant and the use of intemperate language during proceedings or gross impertinence. “Vexatious” may refer to proceedings instituted by a litigant designed to frustrate and harass a defendant or proceedings instituted to annoy a defendant.

In the matter of Brian Nkwe v SA Taxi and Another, the Court took offence to the urgent application of the applicant. It was faced with the decision of whether to hold the Applicant or the Labour Consultancy that assisted the applicant in drafting the application liable for costs in an urgent application brought before the Court. In this matter, the Court states that Brian Nkwe (Applicant), “unassisted legally”, launched an urgent application seeking to interdict a continuation of a disciplinary enquiry scheduled on the 14th of March 2022. The Respondent, SA Taxi, duly opposed the application. During arguments, it emerged that although the applicant signed his own application papers, the applicant was assisted by Bongani Msomi (Msomi) from Msomi and Associates and effectively acted as a representative in the capacity of a labour consultant. After hearing the arguments, the Court dismissed the application. The issue of who is liable to pay the costs remained hanging. The Court confirmed a party who approaches the Court urgently seeking to halt an incomplete hearing whilst bereft of exceptional circumstances conducts himself or herself in a frivolous and vexatious manner.

In this case, the applicant was indeed frivolous and vexatious. For this reason, the Court was minded to mulct Msomi with costs as the representative should advise their client accordingly regarding frivolous and vexatious referrals. The Court emphasised the fact that 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 was afforded the opportunity to state reasons why the Court should not award costs against him, and in his affidavit, he distanced himself from the representation. Instead, Msomi disclosed that an attorney, Ms Ipeleng Mompati (Mompati) from Mompati Attorneys, advised in the matter. Despite having disclosed in Court that Msomi assisted, the applicant confirmed the version of Msomi that Mompati assisted him. Mompati herself confirms this. In the circumstances, Msomi cannot be ordered to pay the costs. The Court ordered that the applicant pay the costs of the application and also ordered that the Secretary of the Legal Practice Council investigate the attorney’s conduct.

The Court issued a clear and stern warning that the urgent Court should not be approached in the absence of exceptional circumstances because the risk of costs being awarded is more surreal than illusionary. It is important to note that employers should always do their due diligence when deciding to use the services of labour law experts to ensure these experts have the expertise to assist and provide the correct advice. Representatives may not hide the frivolous and vexatious referrals behind the masks of their clients.

Article By: Tiaan Visagie
Senior Dispute Resolution Official – CEO Pretoria