Judge takes hard line against Stalingrad tactics

Attorneys in Lottery case will have to explain why they should not pay costs personally on a punitive scale. Suspended NLC company secretary Nompumelelo Nene has failed in her urgent legal bid to halt disciplinary proceedings against her.

• Suspended National Lotteries Commission (NLC) company secretary Nompumelelo Nene’s urgent application to halt a disciplinary hearing was struck from the court roll last week.
• Johannesburg High Court Judge Stuart Wilson found the application to be without merit.
• The judge ordered Nene’s attorneys to make submissions as to why they should not pay the costs personally and on a punitive scale.
• Nene, who was suspended in 2020, is now expected to face charges of misconduct later this month.

Nene is one of five key staff members placed on suspension in 2022 in a crackdown on corruption in the NLC. It appears from court papers before Johannesburg High Court Judge Stuart Wilson last week that Nene has been placing obstacles in the path of her disciplinary hearing.

Her latest, an urgent application for an interdict, was struck from the roll by Judge Wilson as “not being urgent”.

He ordered her attorneys to make submissions before the end of the month, as to why they should not personally pay for the costs of the application on a punitive scale. He said that “attorneys are not postboxes” and “they are duty-bound to advise clients on the prospects of litigation”.

Stalingrad legal defence

According to Wikipedia: “The Stalingrad legal defence is a strategy usually used by a defendant to wear down the plaintiff or legal proceedings by appealing every ruling that is unfavourable to the defendant and using whatever other means possible to delay proceedings.”

According to a timeline attached to the court documents, Nene was placed on suspension with full benefits in November 2022. The disciplinary process commenced in February 2023.

She brought an application before the committee to uplift her suspension but this was dismissed.
She has also sought, in the Pretoria High Court, to set aside the findings of the Auditor-General’s reports on the financial years 2019/20 and 2020/21, which implicated her in misconduct relating to unauthorised expenditure on media services, accountants and auditors.

She has also referred an unfair labour practice dispute to the CCMA, which is still pending.

On 5 March, she launched the urgent High Court proceedings that came before Judge Wilson. She claimed that her dismissal was a foregone conclusion and should the hearing continue, she would be subjected to undue financial hardship and a dismissal on her record, meaning she would struggle to secure alternative employment.

She also claimed a number of violations to her constitutional rights. She wanted her disciplinary hearing, set down for later in March, to be stayed.

The NLC, represented by law firm Cheadle, Thompson and Haysom, raised several objections, including the fact that the matter was not urgent and, if it was, it was self-created.

In heads of argument, the NLC said Nene had been placed on suspension in November 2022, pending investigations by the Auditor-General into the NLC’s books for the 2021/22 financial year.

In October 2023, she had been given a copy of the final investigation report, and in November, the consolidated charges of misconduct with the relevant documents.

In February 2024, she briefed new attorneys who needed time to familiarise themselves with the matter. Later that month, she delivered a 67-page request detailing further documents she required for her defence.

Then on 5 March, she launched the urgent application for the interdict, setting it down for 14 March.
The NLC said this was “an abuse”. Disciplinary action against her was initiated in February and there was no explanation why she had not sought to halt the process sooner.

“The high watermark of her case on urgency is that she will be subjected to financial hardship should the hearing proceed and she is dismissed. The issue with this reasoning is that no evidence has been led and the outcome is far from being known. Her unsubstantiated apprehension of financial loss does not avail her of urgent relief. She is in no worse a position than any employee who faces the possibility of dismissal for misconduct,” – the NLC submitted.

Nene, the NLC said, had alleged unfair labour practices but she had not explained why, in the event she was dismissed, she could not then refer the matter to the CCMA or the Labour Court, under the provisions of the Labour Relations Act.

If her contract was unlawfully terminated, she could also sue for breach of contract and damages.

“Finally, she is at liberty and is entitled to raise all the defences of her employer’s perceived contrived and unfair conduct in the disciplinary hearing,” – the NLC said.

On the issue of costs, the NLC said the application was meritless, poorly conceived and its only real purpose was to delay the disciplinary hearing. Her lawyers had acted unreasonably and recklessly and a punitive cost order against them was warranted.

Source: groundup.org.za

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