Tuesday, June 12, 2007

A greedy and shameless lawyer

Sometimes an advocate’s astonishing arrogance is only trumped by his unrivaled carelessness and chutzpah. Mr. BLM Bokaba seems to be such an advocate.

On Friday he received by far the harshest dressing down ever handed out by the Constitutional Court. The Court is usually circumspect and polite to the point of obsequiousness in those parts of their judgments dealing with the behaviour of counsel. (The way they treat counsel in oral argument is, of course, another matter altogether.) But in the case of Shilubana v Nwamitwa the Court expressed its astonishment at the attitude of the counsel for the respondent.

This case deals with a dispute about the right to succeed as Hosi (Chief) of the Valoyi Tribe in Limpopo, between the daughter of Hosi Fofoza Nwamitwa and the son of Hosi Mahlathini Richard Nwamitwa. When Hosi Fofoza died in 1968 without a male heir, succession to Hosi of the Tribe was, according to tradition, determined by the principle of male primogeniture. But when the Hosi of the second line died a few years ago, the daughter of Hosi Fofoza Nwamitwa was selected by the tribe to succeed above the son of Hosi Mahlathini Nwamitwa and the latter challenged this decision.

The High Court, and eventually the Supreme Court of Appeal, held in the respondent’s favour and the daughter appealed to the Constitutional Court. Mr Bokaba, representing the respondent, applied for a postponement of the case on the day before the hearing was set down for oral argument. The Court granted the request but censured him in the most severe terms.

The Court pointed out that Mr Bokaba never filed his motion of intention to oppose and filed answering affidavits more than two months late. It also pointed out that this late application for a postponement was “inexcusable” and expressed shock that “at the hearing counsel admitted that he was unprepared to present his client’s case, should the application for postponement be denied. He appeared to presume that the application would be granted – a presumption one makes at the peril of one’s client”.

The Court then continued:

Counsel’s conduct went from frustrating to astonishing. During oral argument he matter-of-factly and repeatedly stated that, despite the respondent’s lack of funds, he had adamantly refused to do the matter with funding from the Legal Aid Board. The rates, he said, are too low; the payments, he lamented, are too slow. As a practising advocate, it is of course his decision whether or not to accept Legal Aid funding. He cannot be forced to do so. If he refuses Legal Aid funding, however, he must then either comply with the Court’s rules and represent his client properly, or withdraw from the brief timeously.

Mr Bokaba is doing a disservice to his client, to his honourable profession and to the constitutional principles his client seeks to vindicate. With this in mind, the Registrar of this Court is directed to bring this judgment to the attention of the Pretoria Bar Council.

Mr. Bokaba behaviour is truly shocking: he appears greedy and uninterested in what is best for his client and seems to languish in a pool of entitlement. I would have been deeply ashamed if I was him – but he does not look like the type of person with any shame.

He is supposed to represent the interest of the client and should feel honoured to be able to take such an interesting and important case all the way to the Constitutional Court. Instead, he forces the Court to postpone such an important case because he does not work for Legal Aid Rates.

I hope the Pretoria Bar Council takes firm steps against him. Or am I naive about the way advocates are supposed to behave? I would hate to think this kind of behaviour is acceptable at the Bar and cannot imagine that it is. Off with his head!


Anonymous said...

Prof, you are not naive at all, but spot-on. In the blog below 'Zuma is fading fast' I queried the stratagem of his lawyers, wondering whether lawyers are still ethically bound to promote 'justice' or whether eveything is about money. You responded that, in those circumstances (a lawyerly phrase you didn't use) the remark is 'a bit harsh but maybe not altogether untrue'. I agree that, in those circumstances, taken the accusatory system that we have inherited, the question sounded a bit harsh, while Zuma's lawyers were only representing their client's brief (at what cost to him - and to the taxpayer, one wonders) to try and derail the prosecution if technically possible. Now Mr Bokaba has however provided more food for thought in this regard. I am myself a presiding officer in the lower courts (which is why I choose to remain anonymous), but I can assure you that we get this kind of behaviour often in our courts country-wide; and, not only in civil matters, but also in crimnal matters. Unfortunately, the once or twice I reported lawyers to the relevant Bar Council or Law Society for similar behaviour than that of Mr Bokaba, the results were dissapointing to say the least - ranging from a finding of 'not guilty to misconduct' ... 'in the circumstances', or a mere 'slap on the wrist'. When such matters (in which unscrupulous lawyers leeched their clients'resources without a good result in their favour) eventually go on appeal or review, the High Court usually side-steps the issue, concentrating only on other things (called 'the merits'). Hopefully this judgment by the CC will now sensitize the High Courts, Bar Councills and Law Societies to pro-actively stamp this kind of behaviour out - which amounts to shameless exploitation -and which gives what we know as 'justice' a bad name.

Pierre de Vos said...

I wonder what can be done to rectify this problem of "bad apple" lawyers. Don't think there are any quick-fix solutions.

Doctor Bloggs said...

Lawyers work for money. The easiest money for them to get their hands on is their clients.

Their status depends on how of their clients money they can get their hands on each year.

The more money they take off their clients the higher their status.

The lawyer gets paid regardless of what the judge says. A lawyers reputation depends only on how much money he takes off his client. A lawyers status depends on his earnings.

His earnings are directly proportional to how much money he can take off his clients before they die, financially or otherwise.

A guilty finding against his or her client gives grounds for appeal. and that is more money. A solicitor has no interest in a not guilty verdict, in a quick ending to the case.

The more often a court finds against his client the more money a lawyer makes.

There is no honour amongst thieves, and less amongst lawyers.

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