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No cash for vexatious lawyers who brought hopeless case, by court order

17 March 2020 – 12:52BY ERNEST MABUZA

The land claims court has ordered that the lawyers’ fees be paid back in a matter that the court described as vexatious, frivolous and abusive.

Image: 123RF/SEBNEM RAGIBOGLU

The land claims court had harsh words for lawyers who represented claimants from the Lions River area in the KwaZulu-Natal Midlands and ordered that their legal fees be disallowed.

The court said the conduct by the claimants’ attorneys and advocates in pursuing a hopeless claim was vexatious, frivolous, an abuse of court process and should attract sanction.

The court made the order on Monday, as it dismissed a claim from people who sought restitution a few years ago.

The court held that the Luhlwini Mchunu community was not a community as defined in the Restitution of Land Rights Act.

It said the evidence of a number of people who testified was that their forebears had worked on farms owned by white farmers and they were forced to leave when the numbers of cattle they could keep could not be reduced.

“They were given the option to remain and work on the farms with fewer cattle or leave. They chose to leave,” acting land claims court judge president Yasmin Meer said.

Meer said she asked Mluleki Chithi, advocate for the claimants, for submissions on whether the fees of the claimants’ legal team, comprising an attorney and two advocates — wholly funded by the state — ought to be disallowed in the event of her finding against the claimants.

She said she raised this issue given that Chithi had appeared for another claimant community.

In that case, Chithi unsuccessfully argued that people who were, at best, labour tenants or farm workers on privately owned land constituted a community as defined in the act.

Meer said the Vexatious Proceedings Act of 1956 authorised a court to prohibit legal proceedings by any person who persistently and without any reasonable ground instituted legal proceedings.

Meer also relied on a warning issued by labour court judge Andre van Niekerk in another case that “those who appear in this court should be aware that in future the pursuit of the hopeless case will attract consequences”.

Meer said this applied equally to the land claims court.

She said in this case the conduct of the attorneys and advocates in pursuing the claim was vexatious, frivolous and an abuse of the process of the court, and should attract sanction.

“I do not believe that such a step might deter legal practitioners from appearing for claimants, as suggested by Mr Chiti. On the contrary, it will deter them from litigating vexatiously,” Meer said.

She ordered the claimants’ legal team repay the state whatever fees may have been paid to them.