2 March 2015 by Cliffe Dekker Hofmeyr Employment Matters

To be bound or not be bound – Attorney undertakings

In the recent decision of Eskom Holdings SOC Limited v Wilhelm Jeremiah Smith, J234/15 which was handed down on 11 February 2015, the court was faced with an urgent application to stay the enforcement of an arbitration award, pending the finalisation of review proceedings.

The matter was complicated by the following facts:

  • The employee's attorney had previously provided the employers attorneys with a written undertaking that their client would not enforce the arbitration award until such time as the review application had been finalised.
  • Despite this undertaking, the employee sent a subsequent email demanding that employer’s attorneys apply for an urgent set down date and do so within one week, failing which the employee would proceed with enforcement proceedings.

The Labour Court was faced with determining whether the employee was bound by the written undertaking provided by his attorney, notwithstanding his later correspondence to the contrary.

From a laymen's perspective, an undertaking is understood to be a pledge, promise or a guarantee, however from a legal standpoint the definition is more stringent being, an unequivocal declaration of intention given by one party to another, the latter of whom places reasonable reliance thereon.

In deciding the matter, the Labour Court held that "undertakings given by attorneys in the course of their practice are more than mere contractual arrangements and a failure to honour those undertakings can constitute professional misconduct". Furthermore, the court held that attorneys are not legally obliged to give undertakings to colleagues, but that when they do so, the undertakings must be honoured.

In light of the above, undertakings that are given and then relied upon must be honoured not only from a contractual standpoint but, when given between legal practitioners, the rules of professional conduct amplify this contractual obligation.

Accordingly, the court held that the employee was bound by his attorneys undertaking to stay the enforcement proceedings as, after all, the attorney was the employee's chosen representative.

This decision sheds light on the importance of attorney undertakings and confirms that litigants will be bound by the decisions and representations of their attorneys, representatives and/or trade unions.

It should also be remembered that as of 1 January 2015, under the recent amendments to the Labour Relations Act, No 66 of 1995, the filing of a review application will only automatically stay the enforcement of an arbitration award if the applicant furnishes security to the satisfaction of the court. The form of security is, however, something which is yet to be determined by the courts.

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