Judge, lawyer impressed by complainant

Judge Michael Bishop of the Western Cape High Court in Cape Town and a defence attorney were left impressed by a complainant’s heads of argument he compiled himself by researching legal cases online.

So impeccable were Siyabonga Makunga’s papers that defence lawyer HG McLachlan expressed his shock after learning that Makunga wrote the papers without the help of a lawyer.

Makunga dragged a Cape Town Spur restaurant to court this week over a contract to transport its staffers to and from work – and won.

Writing in his judgement, Bishop said Makunga was asked during cross-examination whether he wrote the papers himself. “I must mention Mr Makunga’s heads of argument.

“He filed heads of argument which contained extensive reference to case law. He said he had, relying on the assistance of Google. Mr McLachlan expressed his disbelief.

“In argument, he told me many of his colleagues were equally incredulous and were convinced only a lawyer could have drafted the heads.”

Bishop added that technology was gradually taking over in litigation. “I admit that I’ve seen worse heads of argument prepared by members of the Bar.

“But this does not evince dishonesty to me. Rather, it shows Mr Makunga’s perseverance and commitment, and the fact that lawyers need to watch out for artificial intelligence.

“One day soon, the computers are coming for our jobs.”

Makunga, who was contracted to transport restaurant employees, routinely arrived one evening in 2018 to pick them up and an unnamed manager instructed the staffers to not get into Makunga’s vehicle, saying his contract was terminated.

No reasons were given and Makunga told the court he did not argue with the unnamed manager. He returned to the restaurant over a few days to try to get management to adhere to the contract signed with him, but to no avail.

The restaurant then later claimed he terminated the contract and that the business, managed by Robin Smailes, suffered damages.

“I have related Mr Makunga’s version here, he stuck to that version. I found him a credible witness. His memory of the events was clear and his version was not meaningfully shaken in cross-examination,” Bishop ruled.

“He was confronted with a termination by a person with whom he had not negotiated the agreement. He did not immediately accept the agreement was over and sought to ‘uphold’ the agreement by appealing to Mr Smailes.”

The restaurant was ordered to pay Makunga’s costs.