Quote of the week

Although judicial proceedings will generally be bound by the requirements of natural justice to a greater degree than will hearings before administrative tribunals, judicial decision-makers, by virtue of their positions, have nonetheless been granted considerable deference by appellate courts inquiring into the apprehension of bias. This is because judges ‘are assumed to be [people] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances’: The presumption of impartiality carries considerable weight, for as Blackstone opined at p. 361 in Commentaries on the Laws of England III . . . ‘[t]he law will not suppose possibility of bias in a judge, who is already sworn to administer impartial justice, and whose authority greatly depends upon that presumption and idea’. Thus, reviewing courts have been hesitant to make a finding of bias or to perceive a reasonable apprehension of bias on the part of a judge, in the absence of convincing evidence to that effect.

L'Heureux-Dube and McLachlin JJ
Livesey v The New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288
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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