A NEW judgment has left me feeling greatly embarrassed about the way
the legal profession must seem to an ordinary woman whose husband died
in an accident almost 10 years ago.
The story is one of catastrophic proportions for the widow, Yoliswa
Eunice Mlenzana. But it’s also a tale of catastrophic inability to
manage time frames on the part of the attorneys concerned, the
Bloemfontein firm of Goodrick and Franklin.
After Mlenzana’s husband was killed in a crash, she wanted to bring a
claim for compensation against the Road Accident Fund in relation to
loss of support and for funeral expenses. But, she claimed, the firm
had allowed her claim against the Road Accident Fund to lapse and as a
result she would get nothing.
If you want to claim against the fund you have three years to bring
the action but the firm had not made the deadline in time. Judge M H
Rampai, who heard the initial matter, had some strongly-worded
comments about attorneys needing to get out of their air conditioned
offices and do some fieldwork to safeguard their clients’ interests.
In the end the judge held that the company was liable for the
compensation that Mlenzana would otherwise have been able to get from
the Road Accident Fund. She had intended to bring a second case to
prove how much compensation she should have been awarded but this
issue never went to trial because it was resolved apparently by
negotiation. The settlement reached between the two sides was then
made an order of court on 23 October last year, with Judge Moloi
ordering that Goodrick and Franklin should pay her R432 500 within 14
days of his order as well as the legal costs.
Perhaps you have already guessed that the money has never been paid.
More than that, however, shortly after the compensation order was
finalised, the firm of attorneys asked for leave to appeal against the
initial decision of Judge Rampai, made nearly two years before, in
which he had said the law firm was liable to pay the compensation that
would otherwise have been paid by the fund.
It was another spectacular failure to meet deadlines. First the firm
had been unable to get the RAF claim lodged within three years. Then
it took them a year and a half to file an application for leave to
appeal that should have been brought within 14 days.
Judge Rampai heard both sides on the question of whether he should
allow an appeal, and at the end of the hearing he turned down the law
firm’s request. A few days later he was officially asked to give
reasons for his decision.
That he has now done, in terms that are less than flattering for
Goodrick and Franklin. He said the firm had brought its application
481 calendar days after the judgment against which it wanted to
appeal, and 459 calendar days after its automatic right of appeal had
expired. These were ‘considerable delays’, he said. Add to this the
fact that this was ‘no ordinary litigant’ but rather a group of
lawyers. On the other side of the coin was Mlenzana, a poor widow and
a domestic worker whose husband had died in June 2004. The law firm
had failed to apply for condonation of its late filing of an
application for leave to appeal, instead acting as though it was
‘business as usual.’
Given all the examples of where the company failed to observe the
proper time limits, how should the court interpret its behaviour,
asked the judge.
‘One thing is very clear to me. The manner in which the defendant has
conducted itself since my judgment is not intended to expedite but
rather to retard the finalisation of this matter.’
He said the company’s behaviour was adversely affecting the business
of the courts and he could not ignore what was happening.
The law firm’s conduct was ‘characterised by application after
application and objection after objection.’ They had no merit, were
based on flimsy reasons and were deliberately trying to interfere with
the quick and relatively inexpensive resolution of the dispute.
Mlenzana had endured great hardship as a result of the firm’s
behaviour, he said, and he was not prepared to let this continue any
further. ‘I have a strong suspicion that the whole exercise is a
scheme, disguised as an application for leave to appeal, to drag out
the matter as long and as much as possible.’
Yoliswa Mlenzana v Goodrick and Franklin, 2011
Yoliswa Mlenzana v Goodrick and Franklin, 2013