A SOUTH AFRICAN advocate and a firm of attorneys could be in serious trouble with their professional bodies after a high court judge said they had acted “unprofessionally or worse” and ordered that a copy of his judgment be given to the relevant bodies to consider disciplinary action.
This tough action against advocate Zixolisile Feni and attorneys Makhafola & Verster is part of the on-going tale of fraud, corruption, maladministration and incompetence at the Pan South African Language Board (PanSALB), a fiasco that has already cost the country’s tax payers many millions of rands.
In a further extraordinary move, Judge Neil Tuchten showed the court’s displeasure with the former chairperson of the board, Mbulungeni Madiba, by ordering him to pay the costs of the case including both junior and senior counsel.
The costs award was made at the end of the judgment in a matter where Madiba and nine other members of the PanSALB board are listed as applicants in a case against the minister of arts and culture and others. It is a judgment that highlights some of the shocking malaise at the board, despite repeated attempts by successive ministers to establish good governance. Most of all however it puts a spotlight on the behavior of two individuals, Madiba and Feni, described by the court as having behaved fraudulently, and attempting to mislead both the court and an advocate approached for an opinion. As a result of being misled, he gave advice that was hopelessly flawed and that could ultimately have cost the state R18-million in compensation paid to wrongly-dismissed staff.
Madiba, the first applicant, is an academic specializing in multilingualism, and for a period he chaired the body that governed the PanSALB. Nine other members of the board were named as co-applicants in a high court challenge to the validity of the minister’s decision dissolving the board’s governing body in January 2016.
As the judge explained in detail, however, though Madiba claimed to be acting with the authority of the other board members, this was not true. Madiba repeatedly failed to provide the court with proof that his alleged co-applicants had authorized him to represent them. As a result, said the judge, “I am driven to the conclusion that in fact (Madiba) was never authorized to represent the alleged co-applicants and that (his) false assertion of authority was a deliberate untruth designed to mislead the court. I hold that (Madiba) is the only applicant before me.”
He added, “Not only has (Madiba) sought to mislead me but there is reason to believe that (his) attorneys of record may have been guilty of untruthfully purporting to represent the persons reflected as the (other applicants).”
Judge Tuchten then dealt with a second preliminary issue, namely the role played by Feni in the case. Feni had been acting CEO of the board – the body that was purportedly challenging its dissolution in court – yet he was listed on the court practice note as counsel representing Madiba and the other nine members of the board in their court application. The minister’s papers contained “many factual allegations critical of Feni,” the judge noted, and in addition Feni had himself brought or been a party to at least 17 court proceedings related to the board, in the high court and the labour court, some of which were still proceeding at the time of Madiba’s case.
The judge said he was concerned to discover, during his preparations for the hearing, that Feni would be appearing for the applicants, and he asked for argument in court on whether it would lead to a failure of justice if he (Feni) were to present the board’s case. When the case was called however Feni appeared, alone, ostensibly for the 10 applicants. The judge raised his concerns with Feni, who replied that “he” had arranged for “co-counsel” to appear with him. Though the judge said this would not solve the problem, a second advocate appeared in court next day with Feni. “I stated that this was unacceptable”, said the judge, adding that he had told Feni that he (the judge) proposed to call on Feni to show cause why he (Feni) should not be joined to the proceedings and interdicted from representing the applicants. In addition, Feni should also show why he and the attorneys of record should not be ordered to pay the costs.
At that stage, Feni withdrew as counsel, though he stayed on in court for some of the day’s hearing.
Judge Tuchten said while these two issues led him to believe that “both (Madiba’s) attorneys of record and Feni may have acted unprofessionally, or worse,” he had other concerns about Feni’s role in the events described in the papers before court.
Turning to a history of the PanSALB’s woes, the judge noted that Madiba’s board was established following the dissolution of the previous board, led by Mxolisi Zwane.
While there were problems during Zwane’s tenure, “there appeared to be a lack of fiscal probity” by the board during the period that Madiba was chair, with the Auditor-General finding “there was not enough audit evidence to support an audit opinion and that the cash flow statement had been materially misstated”. According to the Auditor-General, among other serious problems at the PanSALB, tenders had been awarded to family members and associates of people working for the board but this had not been disclosed as required by law.
Madiba and his colleagues had also decided to get rid of 49 employees. They were hired by Zwane, though all sides agreed they were not needed for the work of the PanSALB. Before acting against these staff, Madiba’s board asked for the opinion of an advocate, referred to by Judge Tuchten as the “advising counsel”, on what to do.
Included in the “factual information” given to the “advising counsel” was that Zwane’s appointment was invalid. Basing his opinion on this “fact”, the “advising counsel” concluded that since Zwane’s appointment was invalid, those staffers he hired could be sacked without redress because they would not be able to prove that they had a right to be paid.
Two days after the “advising counsel’s” opinion was received, the staffers were informed their contracts were not valid and no further payments would be made to them.
But the “advising counsel” had been given “a very serious misstatement” of the true facts by Madiba, said the judge, and he made “an egregious error of law” since all 49 were entitled to fair labour practice. Although counsel had been told that Zwane’s appointment was unlawful, this was not true. Feni had himself gone to court to set aside Zwane’s appointment – and had lost, when one of Judge Tuchten’s colleagues delivered a written decision dismissing the application and finding Zwane’s appointment was valid.
Feni and Madiba decided to “suppress this inconvenient truth” when they instructed “advising counsel”, said Judge Tuchten. They knew that the very basis of counsel’s opinion to the board was false and “procured by a fraudulent concealment from counsel of the true position.”
When Judge Tuchten called for the file of Feni’s challenge to Zwane’s appointment, he discovered that all the papers had been removed from the file. Nevertheless, he discovered that Feni had appealed against the high court’s decision that Zwane’s appointment was valid – but that the Supreme Court of Appeal dismissed his application for leave for appeal. This meant the high court judgment was binding on Feni and the board. If “advising counsel” had been told this, he could not have come to the conclusion he did.
Following the staffers’ dismissal, when the matter went to arbitration, the commissioner said he was “flabbergasted” at the way the board handled the matter. “I can only agree,” said the judge. The commissioner awarded 10 months’ salary each to the eight who had challenged their sacking: “So the callous and impetuous decision to fire these eight employees, based on an opinion that had been procured by fraud, cost the board more than R3-million in damages,” Judge Tuchten said, adding that the other 41 sacked employees would in all probability have received similar compensation.
He found that the minister acted reasonably in deciding to dissolve the board, that Madiba acted in a way that was “both ignorant and arrogant” and that the application he brought must fail.
The normal rule, when private citizens brought constitutional proceedings against the state, was that they would not be ordered to pay costs, even if they lost. But when there was conduct on the part of litigants that deserved censure, the court could make a different costs order.
In this case, said the judge, Madiba deserved censure – first, because he falsely attempted to present other board members as co-applicants and second, because he concealed from “advising counsel” that a high court judge had ruled Zwane’s appointment was valid. Both factors, independently, could justify an award of costs against Madiba, he said.
The case and all it discloses is a shocker, all the more so because for once the Gupta family are not involved: rather than state capture by outsiders, this is unadulterated, home-grown graft.
* First appeared in Legalbriefs, A Matter of Justice