Three judges of the Middelburg high court have set aside a 2020 judgment in which a number of lawyers, including two senior counsel, were blasted for coming to court in breach of lockdown regulations.
In 2020 the Middelburg court ordered that the lawyers, including advocates Thami Ncongwane SC, Andrew Laka SC and Mxolisi Zondo, could not charge fees for preparing, travelling to and attending court — because they had crossed provincial boundaries, without permits or without proper permits, when they came to court.
Nearly four years later, the court said, on appeal, that the lawyers had not even been given the chance to address the court on the issue.
Acting judge Lerato Bam said punitive costs orders against lawyers were made by courts to “express displeasure” about how they conducted litigation.
“That is the only instance in which a court can deprive a practitioner of its fees or make him or her pay out of own pocket,” she said.
Yet here, “the court a quo diverted focus from the urgent application that was the object of the proceedings of March 31 2020 and instead opened a summary inquiry into the practitioners’ permits ... The costs order was to punish them for the alleged ‘illegal’ conduct and had nothing to do with how they respectively conducted themselves in proceedings”.
Bam said the 2020 court had “misdirected itself” by making a punitive costs order without giving the lawyers an opportunity to address the court.
The 2020 judgment from acting judge Hein Brauckman said: “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.”
But in Zondo’s application for leave to appeal, he said: “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.”
Parliament last year passed a bill aimed at expunging the criminal records for those convicted of breaching Covid-19 lockdown laws.
This after the restrictions drew more than 340,000 convictions on various charges, including not wearing masks, consuming alcohol and breaking curfew.
Would you like to comment on this article?
Sign up (it's quick and free) or sign in now.
Please read our Comment Policy before commenting.