Quote of the week

Regard must be had to the higher standard of conduct expected from public officials, and the number of falsehoods that have been put forward by the Public Protector in the course of the litigation.  This conduct included the numerous “misstatements”, like misrepresenting, under oath, her reliance on evidence of economic experts in drawing up the report, failing to provide a complete record, ordered and indexed, so that the contents thereof could be determined, failing to disclose material meetings and then obfuscating the reasons for them and the reasons why they had not been previously disclosed, and generally failing to provide the court with a frank and candid account of her conduct in preparing the report. The punitive aspect of the costs order therefore stands.

KHAMPEPE J and THERON J
Public Protector v South African Reserve Bank (CCT107/18) [2019] ZACC 29 (22 July 2019)
12 June 2007

A greedy and shameless lawyer

Sometimes an advocate’s astonishing arrogance is only trumped by his unrivaled carelessness and chutzpah. Mr. BLM Bokaba seems to be such an advocate.

On Friday he received by far the harshest dressing down ever handed out by the Constitutional Court. The Court is usually circumspect and polite to the point of obsequiousness in those parts of their judgments dealing with the behaviour of counsel. (The way they treat counsel in oral argument is, of course, another matter altogether.) But in the case of Shilubana v Nwamitwa the Court expressed its astonishment at the attitude of the counsel for the respondent.

This case deals with a dispute about the right to succeed as Hosi (Chief) of the Valoyi Tribe in Limpopo, between the daughter of Hosi Fofoza Nwamitwa and the son of Hosi Mahlathini Richard Nwamitwa. When Hosi Fofoza died in 1968 without a male heir, succession to Hosi of the Tribe was, according to tradition, determined by the principle of male primogeniture. But when the Hosi of the second line died a few years ago, the daughter of Hosi Fofoza Nwamitwa was selected by the tribe to succeed above the son of Hosi Mahlathini Nwamitwa and the latter challenged this decision.

The High Court, and eventually the Supreme Court of Appeal, held in the respondent’s favour and the daughter appealed to the Constitutional Court. Mr Bokaba, representing the respondent, applied for a postponement of the case on the day before the hearing was set down for oral argument. The Court granted the request but censured him in the most severe terms.

The Court pointed out that Mr Bokaba never filed his motion of intention to oppose and filed answering affidavits more than two months late. It also pointed out that this late application for a postponement was “inexcusable” and expressed shock that “at the hearing counsel admitted that he was unprepared to present his client’s case, should the application for postponement be denied. He appeared to presume that the application would be granted – a presumption one makes at the peril of one’s client”.

The Court then continued:

Counsel’s conduct went from frustrating to astonishing. During oral argument he matter-of-factly and repeatedly stated that, despite the respondent’s lack of funds, he had adamantly refused to do the matter with funding from the Legal Aid Board. The rates, he said, are too low; the payments, he lamented, are too slow. As a practising advocate, it is of course his decision whether or not to accept Legal Aid funding. He cannot be forced to do so. If he refuses Legal Aid funding, however, he must then either comply with the Court’s rules and represent his client properly, or withdraw from the brief timeously.

Mr Bokaba is doing a disservice to his client, to his honourable profession and to the constitutional principles his client seeks to vindicate. With this in mind, the Registrar of this Court is directed to bring this judgment to the attention of the Pretoria Bar Council.

Mr. Bokaba behaviour is truly shocking: he appears greedy and uninterested in what is best for his client and seems to languish in a pool of entitlement. I would have been deeply ashamed if I was him – but he does not look like the type of person with any shame.

He is supposed to represent the interest of the client and should feel honoured to be able to take such an interesting and important case all the way to the Constitutional Court. Instead, he forces the Court to postpone such an important case because he does not work for Legal Aid Rates.

I hope the Pretoria Bar Council takes firm steps against him. Or am I naive about the way advocates are supposed to behave? I would hate to think this kind of behaviour is acceptable at the Bar and cannot imagine that it is. Off with his head!

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