Legal Practice Council told to probe Unisa’s legal services head's conduct

The Johannesburg labour court has ordered the Legal Practice Council (LPC) to investigate the conduct of Unisa’s head of legal services in a review application matter.

Acting judge Smanga Sethene ruled on Wednesday that the LPC should investigate whether Prof Vuyo Peach “sought to mislead the court” about the date Unisa filed a review application to set aside an arbitration award issued to former vice-principal for operations and facilities Marcia Socikwa.

She was employed on a five-year, fixed term contract between June 2016 and December 2020 and was relieved of her duties on February 28 2021. 

Aggrieved by Unisa’s decision not to renew her contract, she approached the Commission for Conciliation, Mediation and Arbitration (CCMA) which granted an arbitration award in her favour on July 28 last year. 

The CCMA ruled that her dismissal was substantively and procedurally unfair and awarded her compensation of almost R1.3m, equivalent to six months' salary. 

However, Unisa “only saw fit”, according to Sethene, to file a review application on October 26, about 12 weeks later. 

According to the Labour Relations Act, “a party aggrieved by an alleged defect in any arbitration proceedings may apply to court within six weeks of the date of the award for an order to review and set it aside”.

The university was advised on November 4 that the record of the arbitration proceedings was available for collection but it was only “obtained, transcribed and completed” on March 10 this year, about 85 days after it was collected from the court. 

“Unisa never even bothered to calculate that its review application had been deemed withdrawn with effect from February 1. Armed with the completed record of the arbitration proceedings since March 10, Unisa filed the record to court only on May 5, 34 days later.” 

Unisa “pleaded” for its urgent application to be heard on May 18 after a visit by the sheriff on May 9 to attach movable assets at the institution. 

But Socikwa “vehemently opposed” Unisa’s urgent application on three grounds, including that the review application was deemed withdrawn on February 1. 

Sethene stated that after Socikwa’s attorney had made the submission, Unisa’s counsel asked for the court’s indulgence to take instructions from his attorney. 

“His instructions are that Unisa was making an application that its own urgent application, which is before court, be struck off the roll with costs. 

“That was but a startling new application by Unisa without papers!” 

Sethene said that Unisa “ought to have lodged its urgent application on receipt of the arbitration award on July 28”. 

Peach did not explain the reason for the noncompliance with the time frame.

Sethene took umbrage with the date mentioned in Peach’s founding affidavit, which stated that the review application was launched on May 5 this year. 

“Nowhere in Prof Peach’s founding affidavit, on behalf of Unisa, is it categorically stated that Unisa instituted its review application on October 26.   

“In the review application, dated October 26, Prof Peach is the deponent to Unisa’s founding affidavit and yet he states in this urgent application that the review application was only instituted on May 5.” 

Stated Sethene: “In clear terms, Prof Peach in Unisa’s founding affidavit elected to be a stranger to the truth. Or perhaps, Prof Peach deliberately meandered into amnesia as a tactic to deceive the court.” 

He said the urgency by Unisa “was self-created for reasons that are inexplicable, devoid of rationality and candour”. 

Sethene stated that he wrote a consolidated judgment on two urgent applications — Unisa’s and a separate matter involving the justice department in Limpopo and the General Public Service Sectoral Bargaining Council — because “both urgent applications were hopeless in law and facts”.

“Neither of the applicants [Unisa and the justice department] had instituted an application to resuscitate its review application. To borrow from William Shakespeare’s  Hamlet, undoubtedly both applicants were 'hoisted with their own petard'”. 

He said: “I squarely attribute the launching of these absolutely hopeless urgent applications to the legal practitioners who represented Unisa and the justice department.” 

Sethene said “it would be remiss of this court not to pronounce on the conduct of Prof Peach”.

“Prof Peach deliberately concealed to this court that Unisa’s review application was filed and served on October 26 2022. Under oath he stated that the review application was filed only on May 5 2023 and is pending before this court. 

“For someone in charge of the legal services of Unisa, albeit in an acting stead, to commit such elementary error warrants the investigation of the Legal Practice Council to establish if Prof Peach deliberately concealed material facts from the court in respect of when the review application was actually filed and served.” 

He struck Unisa’s urgent application from the roll and ordered its legal practitioners, including advocate and attorneys, who were involved in the urgent application, not to charge any fees for legal services rendered and to reimburse the university within 60 days if they did. 

Unisa was also ordered to pay Socikwa’s costs on an attorney and client scale. 

Unisa said in a statement that it was still in the process of studying and considering the judgment and options available to them “including the right of appeal”. 

“Unisa notes with dismay the comments and order made by Sethene against Prof Peach. He deposed to the affidavit as an official of the university and did not act as a legal practitioner for his own account. 

“Unisa is of the view that due to a previous professional disagreement between Prof Peach and the acting judge, he ought to have recused himself from the matter.” 

The statement said Peach was not given the opportunity to reply to questions or queries that the acting judge made before findings were made against Peach.

“The oversight in respect of the date for filing of the review application and the case number could have been explained under oath in a further affidavit deposed to by Prof Peach. 

“The acting judge, however, elected not to address the issue at the hearing of the matter nor to afford Unisa the opportunity to file further affidavits to address the issue, and instead addressed the issue in his judgment.” 

The statement said that their attorneys of record acted within the scope of their mandate and “subject to our instructions”.

“Our attorneys of record were not afforded the opportunity to reply to questions or queries that the acting judge made before findings were made in respect of their conduct and neither does the judgment deal with how this observation was reached.” 

It stated that “the judgment fails to take into account the fact that Unisa has a constitutional right to have its dispute heard”. 

“Legal practitioners have a duty to defend the interests of their client without fear and favour.” 

According to the statement, Unisa’s previous attorneys who represented it at the CCMA hearing were instructed timeously to attend to the drafting of the review application. 

“They failed to execute the instruction timeously and Unisa was forced to instruct and brief its current attorneys of record from afresh to attend to draft and file the review application.” 

The statement said that their attorneys were not given an opportunity to be heard before the order was made that Unisa’s legal practitioners are ordered not to charge any legal fee for services rendered. 

Kabelo Letebele, spokesperson for the LPC, said it “notes and will study the recently passed judgment to fully understand what is required of us as the regulator”. 

“The Legal Practice Act gives the LPC powers to investigate and look into matters relating to duly admitted legal practitioners and where there are cases of potential misconduct, the act empowers us to look into the matter.”