Date: 07 October 2017 By: Anton van Zyl
In a verdict delivered last week, the Constitutional Court was highly critical of a local non-profit legal institution and the judges accused it of “ill-considered” and “irresponsible” litigation. This court also upheld a decision by the High Court that a punitive cost order be awarded against the applicant.
The case stems from an incident that happened on 29 May 2016. There was a loose electricity cable in Section C, Malamulele, which was reported to Eskom. A team was dispatched to the site the same day and a technician made sure that it posed no danger to residents and motorists. The next day a team was dispatched to the site to fix the problem.
Limpopo Legal Solutions, a non-profit entity, heard about the incident and, on behalf of local resident Meshack Masingi, filed papers in the Thohoyandou High Court requesting an urgent interdict to force Eskom to repair the cable. The case served before a judge at about 17:30 on the 30th of May, but was postponed to the next morning.
Before the matter was heard, during the course of the morning of the 30th, Eskom’s representative phoned Limpopo Legal Solutions' advocate, Kevin Maluleke, to tell him that the matter had been attended to. She urged him to not continue with the application. Eskom’s representative, Ms Mhlwatika, continued to update Mr Maluleke on the progress, which included sending him photos of the work done. In spite of this, Mr Maluleke continued with the urgent application. The next day, in the absence of Eskom, the court granted the interim order.
When Eskom heard that an interim order had been granted in spite of all the company’s efforts to resolve the matter, it “rose in opposition”, to quote the judges. It approached the High Court and asked that a cost order be awarded against advocate Maluleke. When the matter was eventually heard in October 2016, Eskom argued that the applicants had misled the Court. The Court agreed with Eskom that the applicant had withheld vital information. The High Court described the conduct of the applicant as displaying “utmost dishonesty”.
“Worse was that the applicants just did not let go,” the Constitutional Court stated in their verdict last week. Advocate Maluleke pursued the matter and continued with litigation, in spite of the fact that the matter had been addressed by Eskom. The High Court consequently decided to discharge the application and ordered that the cost of the case, on an attorney-and-client scale, be paid by the applicant’s legal counsel.
Limpopo Legal Solutions and its client, Meshack Masingi, took the matter to the Constitutional Court, taking issue with the adverse cost order. Adv Maluleke argued that this was constitutional litigation and should thus be protected.
The Constitutional Court agreed with the High Court that the original application for interim relief was uncalled for. The application had to be dismissed, because it had “no shred of merit”. The only issue that needed to be debated was the cost order. Adv Maluleke relied on the Biowatch principle, which gives protection to applicants against adverse cost orders when constitutional issues are at stake. The Constitutional Court judges, however, differed from him. “But Biowatch drew a limit. The line was this – applications that are ‘frivolous or vexatious, or in any way manifestly inappropriate’, get no shelter from adverse costs,” the judgement reads.
The Constitutional Court dismissed leave for appeal and ruled that each party must bear its own costs as far as the Constitutional Court case is concerned. As far as the High Court ruling is concerned, the punitive cost order against the applicants was upheld.
Anton van Zyl has been with the Zoutpansberger and Limpopo Mirror for over 27 years. He graduated at the the Rand Afrikaans University (now University of Johannesburg) and obtained a BA Communications degree. He is a founder member of the Association of Independent Publishers.