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Judge blasts advocates for travel

The high court in Middelburg has blasted a number of lawyers — including two senior counsel — for crossing provincial boundaries to appear in court and not having proper permits to do so.

“Legal practitioners, as members [of] an honourable profession that interprets and applies the laws, must set an example to other citizens, and dare not flout it. They must be seen to adhere to the law. Any breach of the law and regulations in an open fashion will cause the general public to lose faith in the legal profession and system,” said acting judge Hein Brauckmann.

The advocates he castigated told the Mail & Guardian they would be appealing against his order, saying they were not even given an opportunity to address him on it.

The urgent case, involving the Dr JS Moroka municipality had grave consequences for its residents, who would be deprived of water if the court had not given an order, said the judge. He gave an order that would protect the residents, he said, but also gave a separate judgment on the lawyers.

In it, he ordered that the offending lawyers would not be able to charge their clients fees for preparing, travelling and appearing in court. Their conduct would be reported to the Gauteng and Mpumalanga offices of the Legal Practice Council (LPC).

Brauckmann said that the rationale for the regulations and directives that limited people’s movements was clear: “If no Gauteng resident travels across the provincial border to Mpumalanga, the possibility of the spread of the coronavirus from the Gauteng citizens to the residents [of] Mpumalanga is eliminated.”

The judge said that one of the counsel, Mxolisi Zondo from the Johannesburg Bar, did not present a permit at all, while the two senior counsel in the matter — Andrew Laka SC and Thami Ncongwane SC — had permits, but they were defective. They were also — in terms of the regulations in place at the time — in any event not allowed to cross provincial boundaries. Accordingly, said Brauckmann, they did not in law have permits.

Since this hearing, the regulations have been amended to allow for cross-province travel for essential service workers.

Referring to Zondo, Brauckmann said: “Not only did Mr Zondo ignore the regulations by travelling across the provincial borders, but he simply failed to obtain a permit … Breaching the provisions of the regulations, as stated earlier, amounts to a criminal offence.

“I am also of the opinion that Mr Zondo’s conduct was unprofessional.”

But Zondo has already filed an application to appeal the judgment, saying: “The attack on the applicants and the other legal practitioners was unprecedented and done without prior notice to them, and without affording them a basic constitutional right to be heard before an adverse finding is made against them.”

Speaking to the M&G, he said he did, in fact, have a valid permit, “which was approved by law enforcement officers manning roadblocks on N4, to and from Middelburg, without any doubt whatsoever”.

“I’m going all the way to the SCA [Supreme Court of Appeal] and even the Constitutional Court if needs be. One thing for sure, I will never allow my name to be dragged through the mud,” said Zondo.

His appeal application said the judge had “concocted a story not obtained from any admissible evidence based on falsehood with the sole intention to impugn the integrity of the applicants.”

On Laka, the judge said having been awarded senior counsel status by the president placed a “more onerous obligation to the court to comply with this country’s laws”. Worse, Laka had tried to convince him that his permit was legally compliant, said the judge.

Ncongwane had a permit but it was invalid because it authorised him to cross a provincial boundary — which the law did not allow, said the judge.

Ncongwane did not respond to a request for comment but Laka told the M&G that he and his junior — also castigated by the judge — would certainly be appealing: “The acting judge did not ask us to address him on the issue of permits. On the day I had two permits, one from LPC Gauteng and from Mpumalanga.  My junior Adv Zwane came [from] Mbombela, not Gauteng,” he said.

In his judgment, Brauckmann said that Laka had told the court that he and his junior had travelled from Pretoria. “We have no option but to appeal to set the record straight,” said Laka.

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Franny Rabkin
Franny Rabkin
Franny is the legal reporter at the Mail & Guardian

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