THANKS to an invitation from the University of Pretoria I’ve been having fun teaching a law course to journalism honours students.
Something we discussed is that legal documents are worth examining for possible stories beyond the issue in dispute. For example journalists should routinely check how long it took a matter to be decided since undue delays could be worth a story.
We also looked at the list of parties’ legal representatives, counsel and attorneys, included at the end of judgments. In the past the media would often note these legal ‘appearances’ so everyone accessing the story would know who the lawyers were, even if they didn’t see the original document.
That’s not done any more, and sometimes I feel it’s a disservice to the public.
Take a judgment delivered – with commendable speed – by the Supreme Court of Appeal this week in Dengetenge Holdings v Southern Sphere.
Southern Sphere and Rhodium Reefs were awarded platinum prospecting rights for two Limpopo properties by the Lebowa Mineral Trust (later taken over by the South African government) but when they tried to renew their permits this was refused. In June 2011, however, after a series of court cases, the high court made it absolutely clear that these two companies were the only ones lawfully permitted to mine the properties. Permits awarded to others, including Dengetenge, were invalid.
Dengetenge was given leave to appeal by the high court. And that’s when the trouble began, with the company proving unable to meet the court’s routine timetables. It asked for two extensions of time before filing the record in December 2011. That triggered a deadline date to file counsel’s heads of argument but when Dengetenge asked the opposing companies to agree to a further late filing in April they both refused to do so.
Dengetenge therefore had to file a substantive application for condonation of its late filing with the court registrar. By the time they did so however the entire appeal had already lapsed and the registrar wrote to the company informing them of this. But although that meant the appeal could only be revived through a special process, there was no reaction to the letter and for four months there was total silence.
Then, during July 2012, just when everyone assumed they had heard the last of the matter, Dengetenge tried to get the show on the road again, only to be reminded that its heads of argument had never been filed. Finally, after these were lodged with the court, the question of whether the court would condone the lapse of the appeal and allow it to be revived, was heard last month.
The five judges who dealt with the matter said that before granting condonation a court considered a number of factors including the need to avoid unnecessary delays in the administration of justice, any explanation for the delays, and the other side’s need for finality. They added that, after many previous judgments about what should happen in such cases, all lawyers involved in appeals knew that you don’t get condonation just by asking for it: ‘full, detailed and accurate’ reasons are needed.
Dengetenge’s explanations ‘raised more questions than they answered’ and the reasons given for not making the deadlines – delay in certain documents becoming available – did not make sense. None of these documents were referred to when the case was argued, causing suspicion that Degetenge’s explanation was ‘disingenuous and contrived’ – judge-speak for made-up nonsense, maybe even fibs. Even if truthful, however, the explanation was ‘woefully inadequate’, falling far short of explaining the company’s ‘deathly silence’ of many months. The explanation of this delay was not ‘even remotely satisfactory.’
The delays ‘severely prejudiced’ the other side; the breach of court rules was ‘flagrant’. But despite the apparently inadequate explanation, which was ‘perhaps even lacking in candour’, counsel was allowed to argue the appeal issues anyway, to establish the prospect of success.
During argument another serious problem became obvious: the lawyer who argued the matter in the trial court specifically recorded an ‘important concession’, namely that Dengetenge’s permit was ‘unlawful’. Although that admission could, on its own, have signaled the end of the matter, worse was to come.
During argument on the merits of the appeal, counsel for Dengetenge made an astonishing suggestion: the government should simply have ignored the high court’s judgment and let Dengetenge have a permit. Not surprisingly this argument failed to impress the appeal judges who reminded Dengetenge of the need to respect the ‘authority of the court’ including a court’s decision such as that made in the original review application, and that this authority was often ‘a bulwark against anarchy and chaos’. In the end the judges held that the ‘superficial manner in which the application was prepared’ and the ‘lack of attention to matters which obviously called for an explanation’, were fatal to Dengetenge’s appeal attempt.
As losers, Dengetenge must now pay significant legal costs: they must pay for two counsel in both sides in the condonation application and the court also ordered them to pay two counsel costs incurred by the other side in the aborted appeal . But shouldn’t the Dengetenge board – and the public – ask who was responsible for this debacle: the directors, the instructing attorneys or counsel?
Interested in reading the ‘appearances’ ? – see the judgment for yourself: