In Minister of Home Affairs and others v Lawyers for Human Rights the Constitutional Court, it was held that the Director-General of Home Affairs pay 25% of applicable costs in his personal capacity and that the fees of the minister’s former legal representatives should be disallowed. Leave aside the extraordinary behaviour of the DG who appears to have kept his own minister in the dark.
This column is about lawyers.
According to the court, the minister’s sometime legal representatives “inexplicably approached the court on an urgent ex parte basis for an order that, pending an application to the Constitutional Court or the enactment of remedial legislation in respect of s34 (1) (b) of the Immigration Act, a High Court order remain valid to the extent that it set aside the provisions that a detainee request that his or her detention be confirmed by a court and be replaced with a provision granting an automatic right that a detention be confirmed, by a detainee appearing in person in court”.
The high court also declared s34 (1)(d) of the Act to be constitutionally invalid to the extent that it provided for an extension of the period of detention without affording the detainee a right to appear in court in person at the time the request was made.
On 29 June 2017, the Constitutional Court confirmed these declarations of invalidity and set a timetable of 24 months for amending legislation to be enacted by Parliament. Significantly, it refused to confirm the high court’s reading of words which would have rendered s34 constitutionally valid pending the attempt by Parliament to so amend the Act.
True to form, Parliament failed to meet the deadline set by the Constitutional Court. The minister then launched an urgent application to the Constitutional Court to revive that part of the 2017 high court order which had been set aside by the Constitutional Court and which would have left s34 effectively in play. The minister also launched a similar ex parte application before the high court.
The Constitutional Court found that the then legal representatives for the Department of Home Affairs “had inexplicably” approached the high court on an urgent ex parte basis for an order that pending the application of this court or the enactment of fresh legislation envisaged in the 2017 order, s34 should remain operative. They also approached the Constitutional Court on an ex parte basis in an attempt to revive the high court’s 2017 order.
In both cases, they failed to join the applicant, Lawyers for Human Rights.
They also failed to mention four decisions of the Court that unequivocally held that, while the Court can extend a suspension order before the period of extension expires, it had no power to do so upon the expiry of that date. It also strongly opposed Lawyers for Human Rights’ intervention application by “bizarrely using the inexcusable failure to join LHR by contending that LHR was not party to the proceedings and had no standing to make damning statements”.
The Constitutional Court stated that legal practitioners are “an integral part of our justice system. They must uphold the rule of law diligently and professionally. They owe a high ethical and moral duty to the public in general and in particular to their clients and to the Court.”
Drawing on an article by Constitutional Court Judge Owen Rogers writing extra curially, the Constitutional Court noted that in England, ethical rules governing solicitors and barristers explicitly state that it is improper for a legal representative to make a submission which cannot be regarded as properly arguable. Australian jurisprudence similarly suggests that it is improper for a lawyer to present an argument that he or she knew was bound to fail.
In conclusion, the Court held “that the legitimacy of our judicial system, particularly the courts will fall into disrepute if the shockingly poor conduct of litigation as in the present instances is allowed to go unchecked. The egregious and multiplicity of the shortcomings in the conduct of the legal practitioners in the present case warrant an exceptional order.”
That order was to the effect that these legal representatives were not entitled to charge legal fees for the “services” rendered.
There have been many cases in the past which, at least on a reasonable basis (even on the standard of an average LLB student) legal arguments have been advanced that palpably have no merit other than to postpone an inevitable adverse outcome against a litigant.
All too often, arguments in court have been targeted at the press or the public at large rather than at the courts to gain political mileage for a client without any recourse to a justifiable legal argument. To date, the court has failed to mulct legal practitioners who have conducted themselves in this fashion.
It is significant that the Court has taken this step in this case. It needs to go further in cases in which similar conduct, as described in the judgment based on the ethical responsibility of lawyers and comparative precedent, takes place.
One waits in anticipation for the first time that our apex court will award costs de bonis propriis against a recalcitrant legal practitioner for effectively wasting the time of the court in order to perpetuate an unjustified Stalingrad legal strategy. Or is this precedent as it applied the facts to its order confined to “non-Stalingrad” cases? DM
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I agree. As far as I can tell from reporting, even S C’s have been able to bring cases based on nothing more than fantasies, without being checked by their disciplinary bodies. If they cannot or will not act, then the imposition of costs orders is wholly justified.
” An integral part of out justice system” that seems to lack integrity or any kind of regulation. The LPC doesn’t seem to function. A certain foul-mouthed legal bulky escapes any kind if censure. Can judges not throw out cases that lack legal merit. I can’t help comparing the FTX fraud case: bankruptcy declared and one year later there is a conviction, whereas here it would take a decade at least sans conviction or jail time.
When are the going for originators of Stalingrad in their illogic arguments in the cases of Zuma and the previous public protector who made millions of “peanuts” from us the ratepayers to defend the indefensible. Denise Smit
It is bizarre that this has been allowed to continue for so long, with lawyers making fun of the courts and destroying their credibility. The so called prosecution of Downer was an obvious gimmick from the start and the lawyer’s fanciful arguments turned the court room into a circus with him as a ring master. And yet the learned judges just sat there took it on the chin (or if you prefer up the arras) and solemnly wrote their judgements. Whenever there is a personal costs order against the litigant it should be doubled against his lawyer.
Stem saam!
In June 2023, Lawyers were chastised by Acting Judge Smanga Sethene in the Johannesburg Labour Court for bringing “absolutely hopeless cases” before it. In two cases he prohibited the attorneys and advocates from charging their clients any fees.
Judge Sethene began in his judgment with a quote from the Victoria University of Wellington Law Review: “Where a hopeless case is brought with the assistance of the advocate, the advocate must either be bringing it in the knowledge that it is hopeless (and therefore assisting in an abuse) or believing that it is not hopeless (therefore incompetent), or not caring whether it is hopeless (and therefore guilty of recklessness or gross negligence). In any of these cases, the conduct of an advocate warrants action being taken by the court.”
Love it! More cost orders and rapid collection is required.
Simple solution. The Legal Practice Council must fulfil its mandate, with fear or favor.
Certain members of the legal profession act they way they do because they know that the LPC is toothless and that they will not be sanctioned.
The judiciary need to award more personal cost orders against legal professionals (?) and their clients.
Long overdue that these Stalingrad lawyers and their clients are brought to book. What I’d like to see if a ‘three strikes and you’re in’ rule – in other words, three fatuous or hopeless cases lost, including appealing them further and further up the legal hierarchy, and the client loses their bail and freedom, and the lawyer foots the bill in its entirety for the court proceedings. I’m fairly sure we wouldn’t still be waiting for the Arms Deal trial to begin – remembering that the accused professes his complete innocence – if these challenges were being mounted whilst he was behind bars for a decade or more, and his lawyer paying for the privilege of losing every case and not caring.
Thanks for this. Long overdue.
The last 15 years of the destruction of the South African res publica could have been behind us already had South Africa’s bright legal minds arrived at this conclusion years ago.
Is the South African legal system able to reform itself, or are the billions of Rands in legal fees (not to mention postage and petties) too lucrative to truly ever warrant adequate reform?
Good article but long overdue from the CC. Litigants are regularly obliged to respond to completely spurious legal proceedings drafted with the help of or by legal practitioners. This kind of litigation has become more common since the master, Zuma, showed how effective it can be.
I am astonished that the courts have permitted their honourable selves to be abused in this fashion at all, much less repeatedly. One now perceives the assertion: the law is a blunt instrument.
I fear that personal cost orders won’t break the Stalingrad tactic, as (in this case) the judge is still obliged to listen to and consider the useless argument. The imposition of cost orders is only a retroactive punishment that is likely to only see results in several years if ever (other forms of payment can be made for delaying arguments).
I think a better idea would be for the judges to toss the arguments before they even begin. But I’m no lawyer, and especially not a judge, so perhaps there’s some factor I’m not considering.
Does this mean we can claw back all Dali Mpofu’s fees thus balancing the budget, doubling basic income grants and fixing the potholes?
The author is advancing arguments of an authoritarian person who uses legal arguments to deal with political opponents. He is calling for the judicial system to dispense with the rule of law and due process and to introduce a rule by law. What a hogwash from a supposedly legal academic who must be feeding his students legal drivel. The advancement of our jurisprudence does not lie only in successful legal cases but also in cases that have been lost. As a supposed Professor he ought to know that. The fellow must read JK Rowling in her speech of 2008 during the graduation of the class of 2008 in a speech titled: “The Fringe Benefits of Failure”. This would educate him a lot as in failure there are also benefits. The Constitutional and legal rights of South Africans should not be proscribed by courts and to actually say that there are legal people who bring cases to court with full knowledge that they are going to fail is surprising coming from a legal person let alone for a publication to allow for his drivel to be ventilated. If it were so, there would be no litigation in this country as in the Kingdoms and Sheikdoms. But we are a Constitutional democracy that he needs to distinguish from other forms of democracy. Bathalzar wants to tear the Constitution to shreds and promote judicial and legal thuggery by the courts. We reject his notion and the thuggery to punish legal representatives. Even the worst criminals have to be legally represented.
An interesting Trumpian argument, but ad hominem arguments are a sure indication of a bad case.
Agree Douglas,law is not a recipe for time wasting mumbo jumbo
Mr Ngcukana, respectfully, you have no idea what you are talking about. Punishing lawyers for bringing patently poor ‘Stalingrad cases’ is something judges do not do enough of. Too many of my colleagues at the bar are utterly spineless and take their clients’ money for hopeless causes- not only does it get the client false hope but it wastes govt resources. I am sick and tired, for ecample, of the type of scoundrel advocates that represent Jacob Zuma at present. How many cases have they ever won? Not many, a case of the one eyed man in the land if the blind. I am embarrassed that these advocates belong to the same bar that I do. Great article.