Attorney pays price after re-enrolling RAF case despite previous court order

The Johannesburg high court on Monday ordered an attorney to pay legal costs de bonis propriis (out of one’s own pocket) after it had earlier criticised him for re-enrolling a dismissed urgent application without a court’s permission.

This punitive costs order is made by a court to show displeasure at a legal representative’s conduct and forces the legal representative to pay litigation costs personally, rather than using their client’s funds.

On July 14, judge Stuart Wilson had struck the application by Tsakane Glenda Khoza against the Road Accident Fund (RAF) off his urgent roll.

Khoza sought far-reaching relief to execute a judgment worth more than R7.5m granted in her favour against the RAF. The RAF is now attempting to rescind that judgment, alleging that the past medical expenses claimed had already been settled in full through the Compensation for Occupational Injuries and Diseases Act fund, backed by affidavits from treating hospitals.

Khoza also joined First Rand Bank directors in the litigation. This was because one of the RAF’s bank accounts is held with it.

The execution sought was said to be urgent because Khoza’s children faced exclusion from a private school for non-payment of school fees in August. Khoza had argued that the satisfaction of the judgment was necessary to pay those private school fees.

In his judgment of July 14, Wilson said because the application had been brought where manifestly no urgency existed, and in the face of a previous order of the court on June 30 striking the same matter from the urgent roll, he directed Khoza’s attorney, Selaelo Malatji, to show cause why he should not pay the costs of the hearing before him de bonis propriis.

Malatji filed his affidavit on why he should not pay legal costs of the July 14 application out of his own pocket on July 31.

“Regrettably, the affidavit does not address the questions of why the urgent application was re-enrolled in the face of a previous order striking it or why the (First Rand Bank directors) had been joined, for a second time, to litigation which had nothing directly to do with them.”

Wilson said much of the affidavit was taken up with an intemperate critique of his decision to strike the matter from the roll and wholly unsubstantiated allegations of dishonesty directed at First Rand Bank directors and their representatives.

“The affidavit displayed neither an appreciation of the inappropriate way the litigation on behalf of Ms Khoza had been brought, nor an explanation for Mr Malatji’s conduct.”

Wilson said he was prepared to accept the notional possibility that both he and judge Marcus Senyatsi, who struck the matter from the June 30 urgent roll, may have been mistaken in doing so. He said Malatji had his remedies for any errors he perceived.

“What I needed from him was not a re-argument of the merits of his application, but an explanation of why it had been brought twice in the face of clear rules which forbade the course of action he elected to pursue, and against respondents in respect of whom there was no (dispute).”

Wilson said no such explanation appeared from Malatji’s affidavit.

“The consequence is that Mr Malatji has not shown cause why he should not pay the costs of the July 14 hearing out of his own pocket. For that reason, such an order must follow.”

Wilson said it appeared this was the third time that the high court has been moved to criticise Malatji’s conduct, and the second occasion on which he has been directed to pay the costs arising from his poor judgment out of his own pocket.

“A period of reflection on his general approach to litigation might now serve Mr Malatji well.”