Chithi and Others; In re: Luhlwini Mchunu Community v Hancock and Others

South Africa

23.09.2021

Civil

Courts should not grant adverse orders without providing the affected parties an opportunity to be heard

The issue before the SCA was whether the punitive cost order granted by LCC depriving the land claimants’ Legal Representatives of their fees in a land claim trial, should be set aside. In November 2019, two Advocates and an Attorney were appointed to represent claimants as plaintiffs in a trial for restitution of land rights, held in the LCC. Prior to the commencement of the trial, on 17 September 2019 a pre-trial conference, presided over by the learned Acting Judge President, was held. During the pre-trial conference, the learned Acting Judge President requested the parties to reflect on their stance, with reference to the standard of proof set by the Constitutional Court.

The issue being whether what the plaintiffs sought to pursue in the land claim was indeed a community claim as prescribed by the Restitution of Land Rights Act. She cautioned the parties that should the allegation that the plaintiffs were a community not pass muster, there would be costs implications. At the end of the plaintiffs’ case, the LCC ruled that the plaintiffs were not successful in proving that they were a community. Their action was thus dismissed with costs. The order included a punitive costs order granted against their Legal Representatives. The LCC had found that the plaintiffs’ Legal Representatives persistently pursued proceedings that were vexatious, frivolous and an abuse of the court.

The principle that, Courts should not grant adverse Court orders, without providing the affected parties an opportunity to be heard, is trite and sacrosanct. Furthermore, the right to be heard prior to an order being made in vexatious proceedings is entrenched in the Vexatious Proceedings Act, 1956.

The Courts must do more to avoid summarily inquiring into the conduct of a legal practitioner and thereafter imposing a sanction. Further, in holding that the conduct of the applicants was vexatious, frivolous and an abuse of court processes, the LCC made reference to the provisions of the Vexatious Proceedings Act, 1956 (the Act). The right to be heard prior to an order being made in vexatious proceedings is entrenched in the Act itself. The learned Acting Judge President erred in not paying due regard to these statutory prescripts, in that the learned Acting Judge President failed to separate the inquiry concerning costs against the Legal Representatives from the trial, and to provide an opportunity for the Legal Representatives to be heard.

Tags : Adverse order Cost Legality

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