WHY don’t the media routinely list the legal representatives of parties at the end of news reports? It would help the public make better choices about who should represent them.
This is an argument I’ve made before, but here’s another case in point.
Judge NF Kgomo of the high court in Johannesburg has just handed down a decision in the case of Ellmore Court v Ngwenya, involving an elderly couple who rented a flat from 2008. Their daughter P V Ngwenya signed on their behalf and in the unfortunate case that followed, she was the party against whom the flat’s owners litigated.
The owners asked the court to order that Ngwenya and anyone who occupied the flat through her should be evicted, and that punitive costs should be awarded against her.
During the time that her parents have been staying in the flat, ownership changed and so did the company that collects the rent. In January 2010 she began to withhold her rent as she was unsure who to pay because of the changes in ownership and administration – despite several letters confirming these details. On the advice of the ‘Gauteng Housing Secondary Cooperative’ she paid her rent it into the trust account of the attorneys representing her in the litigation, Q Dube attorneys of Sandton.
After several warnings the new owner wrote last August giving Ngwenya immediate notice to leave.
Though her parents should have gone a month later they were still in occupation during the resulting litigation, unusually protracted after they called the constitution and the Prevention of Illegal Eviction Act, among others, to their aid.
Judge Kgomo summed up all the evidence and argument and concluded that the tenants, while elderly, were in no sense indigent and that it was not an appropriate case for the municipality to provide emergency housing for them. They had the money, were well aware of their rights, were legally represented and had the means to obtain alternative accommodation.
Ngwenya was the author of her own woes, said the judge. Instead of paying the rent, she listened to Dube and asked advice of a ‘dubious’ organisation. Even when she became sure of the identity of the party litigating against her she still failed to pay her rent to date. She said that ‘since legal proceedings had been instituted, she wanted to fight them first.’ She told her lawyers to ‘fight to the death’ said the judge, who added that this was a ‘suicidal step’.
Everyone had the right to have her day in court, he said, but to insist on it when your case was hopeless was both self-defeating and ‘also very expensive’.
The judge sympathised with Ngwenya’s advocate, N S Phetla: he’d tried valiantly for a lost cause. His attorney had not even brought the relevant file to court so Phetla was unable to find the answers he needed during argument.
The judge added, “I dare say this attorney may have led (Ngwenya) up the alley’, misleading the ‘poor unwitting client, down a precipice to nowhere.’ Dube should simply have contacted the owner’s attorney, explained that he had Ngwenya’s rental funds and offered to pay over the money, estimated by the judge to be at least R28 000 in rental alone. That would have made the whole court case unnecessary.
The judge said punitive cost orders these were reserved for people who abused the process of court or defended cases where they should have known that the matter was hopeless, thus causing unnecessary expense to the other party.
The conduct of both Ngwenya and her attorneys ‘left much to be desired’ and they were the direct cause of an unnecessary application. A simple letter from Dube to the owner’s attorneys would have defused the matter long before it got to court.
Their behaviour was ‘unwarranted and reckless to the extent that they can also be categorised as being malicious and frivolous’ and the judge found that the attorneys should thus bear part of the costs themselves. The conduct of the attorneys and Ngwenya amounted to ‘stubbornness bordering on vexatiousness’, it ‘smacked of petulance and … an abuse of court.’ Dube’s behaviour was ‘open to serious censure’, but though the judge had considered reporting the firm to the law society, he decided that the costs order would be warning enough.
Ngwenya, who was ordered to leave the flat by mid June, must pay half the legal costs on a punitive scale while her attorneys must pay the other half.