Zoleka Susan Ponoane has been struck from the roll of attorneys by the Eastern Cape Division of the High Court. (Photo: LinkedIn) 
The South African Legal Practice Council succeeded in its application to have attorney Zoleka Ponoane struck from the roll of attorneys after it was discovered that she had convinced a magistrate to let her write a ruling in a damages case where she was representing the plaintiffs.
Ponoane is based in Komani.
The case has been making its way through Eastern Cape courts for a decade, and every judge hearing a part of it has expressed their outrage and astonishment at Ponoane’s behaviour.
In 2012 Ponoane represented several men in a case against the police. They were claiming damages for allegedly being assaulted, unlawfully arrested and detained.
The facts in this case are that an elderly woman was raped and murdered in her shack at Silindeni administrative area, Sterkspruit.
A group of residents in the area then attacked and burnt down the home of a person suspected to have committed the crimes. The police arrested six people who had allegedly been involved in the arson and mob justice. Each of the six persons later initiated a claim for damages for unlawful arrest and detention against the minister of police.
According to papers before court and a number of judgments, this is what happened:
After the witnesses were led the magistrate reserved judgment. In November 2012 Magistrate Linda Blessing Vowana prepared a four-page unsigned draft judgment and sent it to Ponoane.
Ponoane then phoned Vowana to discuss this with him. Vowana has since died.
Agreement reached
The legal team for the police argued that during this telephone conversation an agreement was reached that Ponoane would rewrite the draft judgment. It was neither sent to the minister’s attorney, nor was he informed of Ponoane’s involvement in rewriting the draft ruling. The reasons for this conduct have not been stated [in court].
On 30 November 2012 Ponoane then faxed the rewritten judgment to Vowana. The judgment was 10 pages in length with significant amendments and additions. In a statement made later to the police, the magistrate stated that he considered the 10-page judgment the “final, official judgment”.
The signed draft judgment (the one that had only four pages) never found its way to the court file. Vowana said he destroyed his manuscript thereof after it was typed. He did not even inform the police’s attorney that he had asked Ponoane to “rewrite” his judgment.
“With these scandalous anomalies not having been explained we are unable to accept the innocence with which this behaviour sought to be deceptively imbued,” Judge Mbulelo Jolwana remarked at the time when the court was asked to review the judgment Ponoane wrote. They ruled that it must be set aside.
In this court case Ponoane said that she asked to rewrite the judgment so it could reflect the “modern trends of judgment writing”.
Jolwana was outraged by the facts placed before him.
“It was dishonest and crafty for the magistrate to have no compunction at all at having had secret liaisons with Ponoane about a matter in which he presided. Similarly Vowana who, after all, is an officer of this court, perhaps blinded by dishonesty and unprofessionalism, sees nothing wrong with what they both did.
“Her own craftiness and deceit is palpable, and in our view has brought the attorneys’ profession into disrepute. The audacity with which she sought to unashamedly explain the inexplicable even when her subterfuge had been uncovered is shocking,” he said in his review ruling.
Difference between documents ‘pronounced’
A comparison of the draft and the judgment indicated that the judgment was predominantly in Ponoane’s words. She assessed the evidence of the witnesses and decided to reject the evidence of the minister’s sole witness. She further accepted the evidence of her own clients and gave reasons for doing so. The difference between the two documents was pronounced. This misconduct violated the core values of the judiciary, including the truism from antiquity that “one cannot be a judge in his own case”, Jolwana said.
Judge Avinash Govindjee said in his judgment that in the new judgment Ponoane awarded damages of between R50,000 and R80,000 and interest to each of the men who sued the police. This was the full amount claimed by them despite Vowana having dismissed their assault claim.
But in the judgment she wrote, Ponoane added a detailed cost order even though the magistrate had made no cost order.
“Deeper scrutiny of her document reveals that the amount awarded to one of the plaintiffs was R60,000 in circumstances where his claim, as amended, was for R50,000. In addition, Ponoane had no compunction in stipulating the full figures (or, in one case, more than the figure) that had been claimed, despite the assault claim having been dismissed.
“Had the true situation not been discovered, the minister would have been prejudiced by being saddled with a judgment granting relief in excess of what the magistrate had contemplated prior to his engagement with the respondent. The suggestion that no one benefitted or was prejudiced is unsupported by the objective facts,” Govindjee said.
He added that although the incident arose many years ago, and despite Ponoane continuing to practise since that time without blemish, it could not be said that there was genuine remorse that counted in her favour.
“The various attempts to gloss over her actions, including the persistent denial of wrongdoing during both the review application and disciplinary proceedings, are indicative of someone who experiences regret, not genuine remorse,” he said.
Ponoane has apologised for her conduct, but Govindjee said he thought it was done in an attempt to avoid being struck from the roll.
“In this matter, there is no moral anguish on her part about the harm that she has caused. In fact, in reflecting on her conduct, she focuses on the negative consequences and impact that the sanction will have on her, instead of the harm her conduct has caused to the legal profession and the judicial process. Bearing that in mind, the apologies now tendered to members of the profession and Bench are belated and unconvincing evidence of true contrition. It is likely that the change of heart has been provoked by the desire to avoid being struck off,” he said.
Ponoane had requested a fine or a temporary suspension from practice. DM