ConCourt tears into lawyer for unnecessary litigation and defaming judge

The Constitutional Court on Tuesday made a self-admitted "impolite and harsh" judgment on Tuesday, slamming a lawyer for his poor conduct.

The highest court in the land showed its displeasure with the conduct of Hitjevi Obafemi Tjiroze.

The court said Tjiroze had been litigating frivolously and vexatiously, at great expense to the Financial Sector Conduct Authority (FSCA). The court also found Tjiroze had defamed a member of the judiciary and gratuitously accused some individuals of lying under oath, without any evidence in substantiation.

"It seems impolite and harsh to start a judgment by telling a litigant that her or his cause must fail. But if there ever was a candidate for that kind of opener, this is it," said justice Mbuyiseli Madlanga in a unanimous judgment in an application brought by Tjiroze.

Tjiroze worked as state counsel for seven years, conducting prosecutions in the office of the prosecutor-general of Namibia. Thereafter he worked for Sanlam, first in Namibia and later in South Africa, as a legal advisor and in legal compliance, respectively.

The dispute between Tjiroze and the FSCA arose from an error in the authority's notice of intention to oppose, which was filed in review proceedings initiated by Tjiroze in the high court in Pretoria.

The error was in the use of FSCA's former name at the time, the Registrar of Financial Services Providers.

In the notice of intention to oppose, the FSCA erroneously referred to itself as the “Registrar of Financial Services Board” instead of the “Registrar of Financial Services Providers”.

Tjiroze opposed the FSCA’s application to amend this notice by correcting the name, arguing that the notice of intention to oppose be set aside, and the review application be heard unopposed.

Acting judge Marcus Senyatsi granted the application by FSCA for leave to amend in February last year.

Senyatsi refused Tjiroze's leave to appeal this decision in August last year for lack of prospects of success, and because the order for the amendment was not a final judgment, and thus not appealable.

However, this did not stop Tjiroze, who then instituted an urgent application before the high court for the retrospective recusal of Senyatsi and "nullification" of both the judgment granting the amendment and the one refusing leave to appeal.

Tjiroze claimed Senyatsi had a conflict of interest arising from  an alleged direct family relation between him and a man employed by the FSCA.

Another acting judge dismissed Tjiroze's application.

The court held Tjiroze's prayer for recusal was not competent, since Senyatsi no longer had authority to deal with the matter.

It also found that Tjiroze's allegations about Senyatsi's association with the employee of the FSCA were vague and unsubstantiated.

Undeterred, Tjiroze approached the ConCourt directly. He said his right to a fair hearing was undermined by collusion between the FSCA and Senyatsi.

Tjiroze said this was because the judge "knowingly held an interest in the matter".

The ConCourt dismissed Tjiroze's application for leave to appeal.

It said its jurisdiction was not engaged because this was a factual dispute dressed in constitutional clothing and awarded costs against Tjiroze.

Madlanga said a punitive costs was warranted because of Tjiroze's conduct.