Attorneys are creatures of their client’s instructions. If attorneys overstep or fail to follow their client’s instructions, it may lead to significant consequences. The Constitutional Court has re-affirmed that if an attorney acts contrary to the express instructions of their client, they act contrary to the actual authority given to them. The applicant was therefore not bound by the unauthorised withdrawal of her unfair dismissal claim.

In Ditsoane v ACWA Power Africa Holdings (Pty) Limited 2023 JDR 4750 (CC), the applicant referred an unfair dismissal claim to the Labour Court. The applicant’s attorneys of record instituted proceedings by serving and filing the applicant’s statement of case. The applicant, after instituting proceedings, consulted other attorneys to get a second opinion on the prospects of success. The applicant was advised that she had strong prospects of success, but, she needed to amend her statement of case. The applicant asked her previous attorneys of record to withdraw as the attorneys of record in the proceedings. This instruction was misunderstood by her initial attorneys, who proceeded to file a notice of withdrawal of the applicant’s case in terms of Rule 13 of the Labour Court Rules.

The applicant’s new attorneys wrote to the respondent to inform them that they had been appointed and that they intend to amend the statement of case. The respondent’s attorneys notified the applicant’s new attorneys that the matter had been withdrawn by the previous attorneys of record and that an application showing cause why the withdrawal should be set aside had to be launched and that the case had to be revived.|

The Labour Court held that the applicant was barred from proceeding with her claim. The case was taken on appeal directly to the Constitutional Court. The Constitutional Court had two issues to decide on, namely, whether the previous attorneys had authority, express or implied, to withdraw the case; and if there was no authority to withdraw the case, could the case be revived.

With regards to the question of authority, the Constitutional Court found that it was common cause that there was a misunderstanding of the applicant’s instructions by the previous attorneys of record.

The Court found that there was no merit to the respondent’s argument that the previous attorneys had apparent authority as the applicant had done nothing to convey to the respondents that the previous attorneys had authority to withdraw the claim. It is not within the usual authority of an attorney to suddenly withdraw a claim. The previous attorneys did not deliver the notice of withdrawal in the exercise of the discretion granted by their general mandate. They withdrew the matter because they were under the mistaken belief that this was the applicant’s instruction. As the previous attorneys did not have actual or ostensible authority to withdraw the applicant’s case, the applicant was not bound by the notice of withdrawal.

The Constitutional Court held that, as the matter was not withdrawn in the first place, there was no need for a revival of the case. The withdrawal was unintended and unauthorised and the applicant was not responsible for the delay caused therein. The Constitutional Court determined that it would be unjust to bar the applicant from continuing with her case and thus the applicant’s appeal succeeded.

This judgment highlights the importance of attorneys following their client’s instructions in that actions taken contrary to the relevant authority will not be binding on the client.

This blog was co-authored by Zubenathi Ndlwana, Candidate Attorney.