"My boss told me not to speak to lawyers"

Stay long enough in this profession and, especially with a general litigation practice such as mine, you get into all sorts of situations.




The latest situation that had me chuckling in disbelief occurred in the course of a consumer matter in which I had to obtain information on behalf of the consumer. The information was not top secret company information, but information about an item that belongs to my client that was supposedly traded in to set off repair costs.

Only after an employee of the supplier had told me that no information about the trade-in was to be found on record did the service provider email me to tell me that he has been informed that that employee that gave me the information was not allowed to speak to lawyers.

This is not the first time I encounter this. Here in my home town the receptionists at a well-known hospital refuse to sign for any documents that they know to come from a lawyer. The only reason they have for this is that their employers told them not to.

Well... you as an employee should probably not put your job in jeopardy by disobeying your employer, but that kind of message tells me that your employer does have something to hide.
And trust me- whatever is hidden, can be found. Attorneys have different means of obtaining information needed for legal proceedings if the holder of that information does not want to give it up freely.

A while earlier- before this incident with the consumer matter- I was also dismissed from a meeting between two parties in a completely non-litigious matter. Well- I have not suspected any foul play on the offending party's part before the meeting started, but when I was not allowed to attend I immediately knew that something was amiss. What the chairperson of the meeting did not consider was that there was already enough circumstantial evidence of foul play on their part that would not have been taken into account had I been allowed to take part in the meeting. Nonetheless- I have been able to handle the matter regardless of not having been allowed at the meeting.

But it is not only with people from outside your workplace that employees get told not to give any information to lawyers. It is not uncommon to find a clause in some employment contracts that stipulates that the contract and its contents are not to be discussed with anyone outside the workplace. Well- as far as it concerns protecting your employer's private information that is all in order, but when it comes to you seeking legal advice about your circumstances at work or maybe even a labour dispute your employer is not allowed to bar you from giving your attorney all information that is needed to handle your matter in the most effective way possible.

I'd like to close this post with a friendly warning. If we ever meet and you tell me that your employer does not allow you to give me any information, that shall not be the end of his troubles. They will but only begin then...

Opposed Motions to be Case Managed

I don't know about you, but one of my favourite parts of motion proceedings is diarising my application, sticking to the time limits and when I have receive a notice of intention to oppose from my opponent, watching my opponent explain why they were not ready for the court date.

Well... it seems like those days are in the past now. Our High Court has recently released a directive in terms of which opposed motions have to be case managed now.

This will very well change the meaning of the term "opposed motion" for me in the sense that an opposed motion to me was one in which I have received an opposing/ answering affidavit. Many litigants are quick to deliver that two page notice just to delay the matter, but I have always been able to get the matter enrolled on the unopposed roll when the time period for delivery of the answering affidavit has expired.

Now- believe me- after receipt of the answering affidavit there is not much to case manage. I guess that for us to insert this case management process into what is already a lengthy process (with court dates being notoriously far in the future from the date on which proceedings are instituted) we shall have to start at the moment at which that notice of intention to delay- pardon me- to oppose- gets delivered.

Then the Respondent's representative can at least place on record in court when they intend to file their answering affidavit and- with case management orders being orders of court- they can find themselves in non-compliance with a court order if they do not serve that affidavit on time.

Well- at least those among us who have had trouble keeping to time limits now have the Court's assistance... 

Defaulters get more time from the Court to breach settlement agreements

If you are practicing in Gauteng the procedure for getting a settlement agreement made an order of court is something like the extract from the Gauteng High Court's practice manual at this link:

https://johannesburgbar.co.za/wp-content/uploads/008-6-14-SETTLEMENT-AGRS-DRAFT-ORDERS-21-08-15.pdf

According to our Court Rules the circumstances under which a settlement agreement can be made an order of court are the following:

" (3) If in any proceedings a settlement or an agreement to postpone or withdraw is reached, it shall be the duty of the attorney for the plaintiff or applicant immediately to inform the registrar accordingly. (4) Unless such proceedings have been withdrawn, any party to a settlement which has been reduced to writing and signed by the parties or their legal representatives but which has not been carried out, may apply for judgment in terms thereof on at least five days' notice to all interested parties."


Here in Mpumalanga, however, we have found that on 24 June 2019 one of our Judges has remarked in the course of hearing the matter under Mbombela High Court Case Number 765/2018 that after that date settlement agreements shall only be made an order of court on application when one of the parties are in breach of the agreement.

This particular matter- Magagula v The Road Accident Fund is one of an immensely large number of matters in our Courts where the Road Accident Fund was the Defendant. This new rule, which has since become a new practice directive in our courts, applies to defendants in the private sector as well.

You only need to litigate against the Road Accident Fund or any organ of state a few times to learn that the only time these institutions ever do pay in accordance with settlement agreements into which they enter is on the day on which the writ for execution gets carried out. For readers who are not in the legal profession- the writ for execution is a document that can only be obtained after one has obtained an order of the court and it is an instruction to the Sheriff to seize a party's assets if he has a judgment against him.

The current situation means that- if you have been in the habit of stipulating in an agreement that money is to be paid, but never a time by which it has to be paid you shall have to get into the habit of stipulating a time for payment so that you can clearly show that a breach of the agreement has been committed after that time expires.

What it also means is that defaulters in the private sector now get roughly 3 months from when they sign settlement agreements to relocate, hide assets or voluntarily surrender their estates.  In the public sector it just means that time for an organ of state to default on a settlement agreement has been extended with another 2 months at least.

I remember a time when our courts have actually welcomed settlements and have not hesitated to make them as orders of court because it reduced the matter of litigious matters on the court roll.

Now, however, you may find that you may be quicker at getting a court order if you just proceed with the trial or with argument on the opposed motion.

Ironically- there is still a penalty in place for parties who either delay a settlement being reached or who refuse to enter into a settlement agreement. If a matter is of such a nature, however, that the conducting of a trial and presenting of arguments would take less time than the time you would have to wait for the Defendant to be in breach, wait for a new court date for your application to get the settlement made an order of court and perhaps get sent away by the Judge for whatever reason to come back another month later just to get your court order confirmed (let alone signed by the Registrar) I am certain that it would be clear that reaching a settlement would only be of benefit to the party that has to pay.

As I will show in a later blog post, however, these practice directives get issued and amended in response to events that take place in the courts and it is only a matter of time until our courts shall find that they shall have to change this rule as well...