Fatima Maliwa Dlwati v King Sabata Dalindyebo FET College

The Applicant brought a money claim against the Respondent in the Labour Court. The application was opposed and both parties filed heads of argument. When the matter was called for hearing on 8 July 2021, it emerged that the Applicant had passed away in July 2020. The Applicant's attorney only informed the Registrar of the death by email on 29 June 2021 (marginally over a week before the hearing) and did not inform the Respondent's legal representatives. No executor had been substituted for the deceased Applicant. The Applicant's attorney, by email, indicated an inability to proceed for want of instructions from an executor and requested the matter be stayed. No formal postponement application was brought. The Respondent's legal representatives only learned of the death when the Registrar made enquiries on 6 July 2021. The Respondent submitted that the application should be dismissed with costs due to the Applicant's death and unreasonable delay in substitution, or alternatively costs should be awarded if postponed.

• Whether proceedings are automatically stayed upon the death of a party pending appointment of an executor
• Whether an application can be dismissed when no executor has been appointed to represent the deceased estate
• Whether it is competent for the court to take further steps in proceedings before an executor has been substituted for a deceased party
• Whether a postponement should be granted in the absence of a formal application
• Whether the Applicant's legal representatives should be personally liable for wasted costs de bonis propriis

1. The application is postponed to 28 October 2021. 2. Costs of the hearing of 8 July 2021 are reserved. 3. A rule nisi is issued calling upon the Applicant's attorneys to show cause under oath why a costs order de bonis propriis should not be made against them for wasted costs occasioned by the postponement. 4. The Applicant's attorney must file an affidavit by 27 August 2021 explaining: when they became aware of the death; steps taken to obtain instructions from the executor; whether and when the Respondent's representatives were informed; correspondence with the Registrar; the death certificate; and details of any appointed executor. 5. The Respondent may file an answering affidavit by 10 September 2021. 6. The Applicant's attorney may file a reply by 17 September 2021. 7. Parties may file supplementary heads of argument on wasted costs.

In South African Superior Court proceedings (including the Labour Court), when a party dies: (1) The proceedings are not automatically stayed (unlike in Magistrates' Courts under Rule 52(3)); (2) However, no further steps may be taken in the proceedings until an executor has been appointed and substituted for the deceased party; (3) It is not competent to dismiss an application on its merits before an executor has been substituted, as this would prejudice the defenseless estate during the hiatus between death and appointment of the executor; (4) Even if an executor has been appointed, the deceased party must still be substituted with the executor before proceedings can continue; (5) A deceased employee cannot be reinstated as they are incapable of tendering services - the capacity to tender services pursuant to a reinstatement order is a sine qua non; (6) An executor does not step into the shoes of the deceased but is a separate legal persona who can only enforce contractual rights such as claims for wages up to the date of death.

The Court made several important observations: (1) It would be prudent for the Labour Court to endorse the simplified substitution procedure in Rule 15(3) of the Uniform Rules to promote efficiency, rather than requiring formal joinder applications under Rule 22. (2) Legal practitioners owe paramount duties to the court that extend beyond their duties to clients - they must autonomously exercise judgment to ensure speedy and efficient administration of justice. (3) Legal practitioners should communicate material developments to opposing counsel, not just to the Registrar, and should do so timeously to avoid wasted costs. (4) Where finality is delayed due to unreasonable delay in appointing an executor, the proper remedy would be a mandamus compelling the Master to grant letters of executorship, not dismissal of the claim. (5) Upon death of a party, the premium placed on finality and expeditious resolution unique to labour litigation would wane or dissolve, as there is no ongoing relationship to restore. (6) It is not sufficient for legal practitioners to assume that employees of the opposing party know of material facts - they must communicate with the duly appointed legal representatives. (7) Where postponements are sought at the eleventh hour due to legal practitioners' own culpability, this is inconsistent with their duty to properly manage cases.

This judgment provides important clarification on the procedural position in South African Superior Courts when a party to litigation dies. It distinguishes the Superior Court position from the Magistrates' Court and corrects the approach in earlier Labour Court decisions. The case emphasizes: (1) that proceedings are not automatically stayed in Superior Courts upon death of a party (unlike in Magistrates' Courts); (2) that nevertheless no further steps may be taken until an executor is substituted; (3) that dismissing applications before executor substitution would be procedurally unfair and substantively unjust; (4) the ethical duties of legal practitioners to timeously communicate material developments to opposing parties and the court; and (5) the importance of following proper procedure when seeking indulgences like postponements. The judgment also confirms that reinstatement orders cannot apply to deceased employees and that claims become moot where the primary relief is no longer competent.