- Attorneys ordered to personally pay legal costs after pursuing an urgent application with no legal basis.
- Sabelo Mhlanga and 24 other dismissed workers sought to stop HJB Services from hiring replacement employees.
- Judge says employers may fill vacancies while unfair dismissal disputes are pending.
The Labour Court has ordered the attorneys representing Sabelo Mhlanga and 24 other dismissed workers to personally pay the costs of failed urgent litigation after finding that their application to stop HJB Services (Pty) Ltd from hiring replacement staff had no legal foundation.
Acting Judge PN Kroon granted a de bonis propriis costs order, meaning the attorneys must pay the legal costs out of their own pockets, not their clients'. The judge concluded that the urgent application was legally untenable and that the litigation had been conducted in an unprofessional manner.
Workers sought to stop replacement hiring
The dispute began after Mhlanga and 24 other workers were dismissed by HJB Services. They referred an unfair dismissal dispute before their attorneys launched an urgent application seeking to prevent the company from appointing replacement employees until the dispute had been finalised.
Silver Solutions 2870 (Pty) Ltd was also cited in the proceedings. However, the court found no substantive relief had been sought against the company because the workers had been employed by HJB Services.
The court held that dismissed employees do not have a legal right to stop an employer from filling vacancies while an unfair dismissal dispute is pending. The judgment said, "The relief sought is specious in the extreme.
"There is no legal foundation to contend that the applicants could ever have had a right to stop the second respondent from appointing staff so it could run its business."
Judge Kroon said that if employees ultimately succeed in their unfair dismissal claims and are reinstated, the employer must then deal with the consequences of having appointed replacement staff. That possibility does not justify stopping recruitment while litigation is underway.
The court added that accepting the applicants' argument would interfere with an employer's right to run its business and would undermine established principles of labour law.
Application described as hopeless
The judgment contained unusually strong criticism of the urgent application. Judge Kroon said, "It was untenable and unarguable. It was a non-starter from its inception. It was a case that no reasonably competent legal representative would have advanced."
The court found that the relief sought would have stopped HJB Services from filling 25 vacant positions for several years while the unfair dismissal dispute made its way through the legal process.
According to the judgment, the application seemed aimed at interfering with the employer's business operations rather than protecting a legally enforceable right.
Court criticises attorneys' conduct
The respondents said they repeatedly received less than 24 hours' notice of hearings, were not properly invited onto the electronic court system, and faced repeated procedural failures during the urgent proceedings.
Although the applicants' attorney apologised and blamed technical difficulties with the online court system, the judge found the explanation inadequate. The judgment said, "The statement is so vague that it can carry little evidential weight."
The court also rejected the suggestion that acting on a pro bono basis justified a lower professional standard. "The court fails to understand the connection between the fact that a party is running a matter pro bono and the issuance of a costs order de bonis propriis," the judgment further read.
Professional duty to the court
Judge Kroon stressed that legal practitioners have an overriding duty to the court and must refuse to pursue cases that amount to an abuse of legal process, even if clients instruct them to proceed.
The court warned that legal representatives must not take advantage of indigent litigants by pursuing claims that have no legal merit, and emphasised that lawyers are required to exercise independent professional judgment before instituting proceedings.
Concluding the matter, Judge Kroon found that both the complete lack of merit in the application and the unprofessional way it was handled justified an exceptional personal costs order.
The applicants' attorneys were ordered to pay the costs of the application de bonis propriis on Scale B.
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