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[2008] ZAWCHC 312
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Roome v Roome (18741/2007) [2008] ZAWCHC 312 (10 December 2008)
JUDGMENT
IN
THE HIGH COURT OF SOUTH AFRICA
(CAPE OF GOOD HOPE FROVINCEAL
DIVISION)
CASE NO
:
18741/2007
DATE
:
10
DECEMBER 2008
In
the matter between:
MICHAEL
CECIL ROOME
Applicant
and
JURINDA
ROOME
Respondent
JUDGMENT
DAVIS,
J
This
is an application for a punitive costs order which has been brought
by the applicant (respondent in the main proceedings) pursuant
to a
dispute of a matrimonial nature which was ultimately resolved on the
21
st
of December 2007 when an order was granted by this Court. After
negotiations had taken place between the parties, having been urged
to do so by this Court. The
gravamen
this
present dispute is that, in the replying papers pursuant to the
principle dispute, the respondent (applicant in the main application)
on these three separate occasions made scandalous and personal
attacks on the legaf representatives of the applicant. Jn particular
he averred:
'ek
vermoed dat respondent tydens die opsteJ van haar antwoordende
eedsverklaring besluit het en
qeadviseer
is om hierdie sowel as al die ander aspekte van die ooreenkoms te
ontken en daardeur poog respondent om hierdie Agbare Hof te mislei
ten opsigte van die waarheid".
Further;
"Die
inhoud van hierdie paragrawe word ontken en word respondent se
onwaarhede weer hier ontbloot. Ek neem aan dat die respondent
hat met
hierdie innoverende weergawe vorenda~g gekom nadat sy met haar
huidige regsverteenwoordiger konsulter het."
It
appears that, at some point, respondent realised that these
constituted egregious attacks on the legal representatives who were
but discharging their mandate. Accordingly, in a further affidavit,
of which I only now have sight (by agreement between the parties
it
was handed to me), respondent sought to explain away these attacks
through the old excuse that "it was a typing error".
The
bizarreness of this excuse is perhaps best illustrated in the
following passage from this affidavit:
"In
paragraaf 144 het daar weereens 'n onduidelik ingeglip as gevolg van
'n tikfout aangesien hierdie paragraaf verwys na die
woord nadat
terwyl die korrekte woord alvorens moes wees, met ander woorde
voordat die konsultasie plaasgevind het. Hierdie paragraaf
moet as
voig lees: '144. Die inhoud van hierdie paragrawe word ontken en word
die respondent se onwaarhede weer hier ontbloot.
Ek neem aan dat die
respordent het met hierdie innoverende weergawe vorendag gekom
alvorens sy met haar huidige regsverteenwoordiger
gekonsulteer het."
With
the greatest respect to this explanation, it is disingenuous in the
extreme. Consider what has been attempted to be conveyed
in this
amendment. The initial passage in the affidavit was that untruthful
averments were made by respondent, pursuant to or after
she had
consulted with her legal representatives, with the direct and obvious
implication that the legal representatives had instigated
averments
which were blatantly false. By changing the word
a
nadat°
to "alvorens", the passage is meaningless. What is the
point of explaining to a Court that a person makes incorrect
and
dishonest allegations before she consulted with her legal
representatives? The
only
possibfe
justification
for
such
a paragraph would to argue in mitigation of applicant and hence the
converse of what the deposer to the affidavit was clearly
seeking to
intend: She did not know what she was doing, because she had not the
benefit of proper legal representation. That surely
was the exact
opposite of what he intended to convey in vigorous and somewhat fiery
and angry affidavit deposed to pursuant to
the principal dispute.
Mr
Zazeraj
.
who appeared most ably on behalf of the responded raised two
arguments in this regard: one that an apology had been proffered
and
two, that over a year had taken place since a substantive dispute had
been resolved and accordingly tempers should have cooled.
The problem
about the first aspect is that no apology by way of a letter has ever
been forthcoming from the attorney who acted
on behalf of the
respondent, or alternatively respondent himself. In relation to the
second issue, while tempers might have cooled
in my view
f
the fact that a further affidavit was generated to try to explain
away this conduct, disingenuously, only caused tempers to be
further
heated rather than cooled.
I
do take seriously the fact that a long time period has ensued. Mr
Verster
explained that the delay was partly due to his own error in that he
had been instructed by his attorney to approach this Court
earlier,
and I have no reason to take issue with this account.
The
issue does raise an important point of principle. Attorneys are
officers of the court. Advocates are officers of the court.
They owe
a fidelity to the legal system of which their colleagues and the
presiding officers are integral parts. Mr
Zazeraj
correctly pointed to the fact that all legal officers work in an
adversaria! system, a vigorous opprnent yesterday, a supportative
colleague today I understand the nature if the task. I also accept
that matrimonial disputes by their very nature, raise emotions
Hurtful, nasty and truly depressing allegations are hurled from one
party to the other, backwards and forwards
But
legal representatives are not the aggrieved parties. It is not their
marriage that has fallen apart. It is not their emotional
psyche that
has been scarred by the break-up of what was once a loving
relationship. It is not their children who constitute the
battleground for further emotional conflagration. Legal
representatives shoufd remain calm, dispassionate, pursue their
clients'
interests within the context of being officers of the Court.
All too often in matrimonial cases, which I have come across, the
nature of the litigation leads to speculation as to who real source
of the problem; that is - would the matter better be resolved
without
the lawyers rather than with the lawyers? Are the lawyers maintaining
a dispassionate barrier to which I made reference
earlier?
The
point is well made in a forward to
Herbstein
and Van Vincent's Civil Procedure of the Supreme Court of South
Africa
,
by Mr
Justice
Davis
(no relation) cited in 2008
De
Rebus
22
"In
which the learned judge warned against the practitioner who takes up
the utterly wrong attitude that his sole duty is to
his client ... as
if he were that client's mere hireling."
It
is for that reason that
Gofdstone.
J
.
(as he then was), made an adverse cost order in the case of
P
rote a Assurance Company Limited v Januszkiewikz
1989(4) SA 292 (W). In that case an attorney had made scandalous
allegations about the integrity of a plaintiff anrj his opponent.
The learned judge then said;
u!n
my opinion these attacks made upon Jordan on the evidence placed
before the Court by Mr Eiser in his affidavit are scurrilous.
It is
wholly unjustified by anything stated or done by Mr Jordaan. If
attorneys as officers of the Court behave in such a fashion
towards
each other such conduct can only reflect upon the dignity of the
whole legal profession. Furthermore, such conduct brings
not only the
profession into contempt but indeed the whole system of justice and
the Courts/ at 298E.
In
that case, the application for costs
de
bonis propriis
was
not pursued and the Court, in order to indicate its extreme
displeasure, made an award of attorney and client costs.
In
my view, this case is no different. These allegations should not have
been made against lawyers trying to represent their client,
legal to
the best of their ability. The deponent should have respected
their integrity, which they deserve.
Legal
representatives, being attorneys and advocates, have only one
component of trading stock. That is their integrity. Without
integrity, no attorney, nor advocate can continue to practice
successfully Tell a judge that an attorney or an advocate is
dishonest
and that tabel sticks. A sense of doubt may be created in
the judicial mind, however unfair that might subsequently prove to
be.
This kind of conduct cannot be allowed. I express the hope that
in making these comments practitioners, particularly in the area
of
matrimonial disputes, will bear in mind the necessity to keep a
proper balance between being officers of the court doing proper
duty
to their clients.
In
this case legal representatives, who are entitled to hold on to their
hard earned integrity were entitled to approach this Court.
To the
extent that there has been a delay, that may be partly due to my own
fault, in that, upon reflection, I should have dealt
with the cost
issue on the day, but there was a desire to deal with the substantive
questions, particularly bearing in mind the
pressure of the roll duty
of a duty judge.
I
cannot make a clear and definitive ruling that the blame lies so
clearly with the legal practitioners as to justify an the award
of
costs
de
bonis propriis.
Accordingly,
following the approach of my esteemed colleague,
Goldstone
r
J
.
the order that is made is that costs of 21 December 2007 are awarded
in favour of the applicant (respondent in substantive case)
on an
attorney and client scale together with the costs of this hearing of
this morning, being 10 December 2008. Those costs are
on the ordinary
scale because I did not see any reason why Mr
Zazerai
could not have been permitted to argue the matter as eloquently as he
did.
DAVIS,
J