Bid to sue CCMA commissioner for R20m fails

A Durban attorney has lost his bid to sue a CCMA commissioner for defamation over comments she made while granting a cost order against him.

Durban - A Durban attorney has lost his bid to sue a CCMA commissioner for defamation and overturn a costs order she granted against him because he ought to have known “the vast difference between acting in the best interests of one’s client and lying to serve those interests”.

While the attorney, Mondli Nhlangulela, claimed that commissioner Phumla Nondala had made “baseless and malicious comments about him”, Durban High Court Judge Mokgere Masipa, in her recent judgment in his R20 million defamation claim, said the commissioner was entitled to express her displeasure.

The judge also took issue with the fact that the attorney had not sought to review the commissioner’s award (finding that his client was guilty of misconduct and should be dismissed) but had only sought to challenge what he said were the “defamatory comments” made against him and the costs order.

The matter before the CCMA was heard between July and October 2013, Nondala handing down her ruling in writing soon after.

She accused Nhlangulela of deliberately delaying the matter and persisting with a “patently false version, too porous to be believable as probable”.

The commissioner said he was an official of the court who took an oath that he would serve South African society with honesty and integrity.

“Instead, he has written the script, through his deplorable and highly unprofessional conduct during the hearing, for my decision to award a cost order against him and/or his legal practice,” she said.

She absolved his client of the costs, saying “it is understandable that she was under his guidance and she should not pay for his legal sins”.

Nhlangulela said these utterances were “untrue and malicious” and an unwarranted personal attack.

“There was nothing to show that I acted unprofessionally or disrespectfully,” he said.

“Attorneys must represent their clients without fear or favour ... I did not give evidence under oath but was representing a litigant. An attorney cannot be deterred by a costs order to represent his client.”

Under cross-examination, he accepted that presiding officers should be able to make decisions without fear.

He claimed, however, that because he was not a party to the litigation he should not have been accused of lying. He was also prevented from taking the matter on review.

“I was not under oath. While clients can lie in their instructions, legal practitioners cannot be held liable for this.

“There must always be good reason for a judicial officer to make a costs order,” he said.

“While there may be argument that attorneys and politicians have to develop a thick skin, they also have the right to dignity and to protect their integrity.”

After his evidence, the commissioner made an application to be absolved from liability on the basis that she had no case to answer because “injury to dignity had not been proven”.

Advocate Clayton Edy, who represented her, pointed to the fact that the attorney had subsequently been appointed as an acting magistrate “and if he was defamed to an extent justifying a R20 million claim, he would not have been appointed”.

The judge said Nhlangulela himself had conceded that commissioners could make costs orders, and personal costs orders, “as long as this was justified”.

“It cannot be said that the commissioner directly or indirectly intended to injure his reputation.”

She ordered that he pay the costs of the application.

Daily News