19 August 2024
Judge Dunstan Mlambo has asked that a ruling on lawyers who did “cut and paste” work for refugee clients be sent to the Legal Practice Council and the National Director of Public Prosecutions, for possible action. Graphic: Lisa Nelson
A firm of attorneys and an advocate have been ordered to pay the costs, from their own pockets, of six “cut and paste” applications involving refugees seeking asylum.
Gauteng Judge President Dunstan Mlambo, with Judges Leonard Twala and Colleen Collis concurring, said it was clear from the six applications, and other similar applications which had previously come before the court, that Manamela MA Attorneys was running a “cottage industry”, preying on vulnerable refugees, many of whom could not speak English and were in custody, awaiting deportation.
The judges have ordered that their ruling be sent to the Legal Practice Council, the Minister of Justice and Constitutional Development, and the National Director of Public Prosecutions, for possible action.
The judgment was handed down in late July but has only now become public.
Earlier this year, the court made orders in the six applications but reserved the question of costs due to concerns that court processes were being abused when “six identical applications, replicated six times with the same grammatical mistakes” were placed on the urgent roll - the only difference being the names and country of origin.
“This gave the inescapable impression that one application was used as a template and then copied and pasted onto the others,” Judge Mlambo said.
Judge Mlambo ordered the attorneys, and advocate Sinethemba Vobi who appeared in court in the applications, to file affidavits setting out why they should not be ordered to pay punitive costs.
Instead, the attorneys applied for leave to appeal that ruling, which was dismissed. No explanatory affidavits were filed.
Judge Mlambo, in his ruling on costs, set out various other cases which highlighted “cottage industries” in the attorney profession.
This abuse, and the “alarming practice of using identical affidavits save for personal details” was not novel and courts had previously put an end to it in matters involving sequestrations and other issues involving refugees.
He said a careful analysis of the six applications which came before him “clearly confirms that what was placed before the court was a single affidavit, reproduced six times with minor changes”.
This was an abuse of the court process and exploitation of vulnerable asylum seekers “who likely do not understand what they are deposing to”.
Judge Mlambo said he analysed all cases launched by Manamela MA Attorneys filed in his division. He had found 66, most of which were matters against the Minister of Home Affairs, and “verbatim” affidavits had been used in most of them.
In pointing out spelling and grammatical errors, he said since English was not the first language of many lawyers, some mistakes could be expected. “What is unacceptable is for these mistakes to be replicated in almost all of a single law firm’s applications. What this analysis demonstrates beyond doubt is that no new drafting took place but a cut and paste exercise was employed in all different matters.”
Turning to the question of who should pay the costs of the applications, Judge Mlambo said cost orders against legal practitioners were rare “and for good reason”.
“A legal practitioner should be free to represent their clients in the best way they deem fit, without fearing their opponent or even the court.
“Fear of an adverse costs order should a case be lost should not be a constant thorn in their mind,” Judge Mlambo said.
He said orders to pay costs from their own pockets were reserved for the most serious of matters, “where the court wants to show its displeasure at the conduct of a legal representative”.
“The use of identical affidavits, not only in this matter, but those recycled in previous matters involving both Manamela MA Attorneys and Mr Vobi were clearly aimed at misleading the courts.
“While Mr Vobi is an advocate, he was, however, involved in all the matters before us and couldn’t consciously go on as if nothing was amiss. Their conduct can only be regarded as deliberate and displayed a lack of care for the interests of their clients and those they cited as respondents.
“There was also no information placed before the court explaining how the affidavits were commissioned in English when, on their purported versions, the applicants only spoke ‘broken English,” Judge Mlambo said.
“We must show our displeasure towards this in the strongest manner.”
Judge Mlambo said the conduct of the firm and the advocate must be referred to the LPC for further investigation.
The state attorneys, who had received the matters, “must also be taken to task for their negligence in not realising the repeated use of identical affidavits”.
“This conduct must be brought to the attention of the Minister [of Justice] to consider whether it is necessary to put measures in place that could prevent such abuse.
“Lastly, the deliberate placing of false information before this court, and subsequent claiming for fees for work not actually done, must be brought to the attention of the National Director of Public Prosecutions to decide whether any crimes have been committed,” Judge Mlambo said, ordering the attorney and the advocate to pay the costs out of their own pockets.