15 September 2021
Cape High Court. Archive photo: Ashraf Hendricks
A Cape Town advocate has been reported to the Legal Practice Council (LPC) by a judge after repeatedly arriving late in court for a criminal trial and for “blatant dishonesty” in claiming he was “isolating” with symptoms of Covid-19 on 4 and 5 August when in fact he had appeared in another court.
“He lied to this court about his medical condition. He attended another court in a country town about an hour’s drive from Cape Town and when he was subsequently asked by the court whether he had attended to other matters, he lied again,” Judge Patric Gamble said of Advocate Andile Gladile.
The Judge said he had checked with the Chief Magistrate of Grabouw who confirmed that Gladile had appeared in court on 5 August to attend to a bail application.
The Judge said that had a proposed provision in the Criminal Procedure Act, which would allow for cost orders for “abuse of process”, been promulgated, he would have directed that Gladile pay for wasted costs caused by the adjournments.
Judge Gamble said the trial of Patience Kwaza and three others for the murder of Kwaza’s husband had been set down for the entire month of August this year. But at the time of writing the ruling, on 9 September, the trial was far from finished and the court had only heard evidence from three witnesses.
“It has been plagued by postponements,” said the judge. Gladile, representing two of the accused, had been responsible for most of them.
Two postponements in early August were because Gladile said he was sick, possibly with Covid.
Then on 10 August, he arrived 35 minutes late, claiming his taxi had been delayed. Judge Gamble asked if he had attended other court proceedings, and he replied that he had not. The Judge warned him not to arrive late or he could face contempt of court proceedings.
The next day he arrived late again and said his Uber had a flat tyre. Judge Gamble warned him again.
On 23 August, the trial could not continue because the high court cells had been flooded. But Gladile was not present in any event. He had sent a message saying he’d attended “no less than two funerals” over that weekend and he was experiencing Covid symptoms.
Later that day, he sent an email saying he had consulted a doctor who had said because he was “low risk”, he would not be tested for the virus but must quarantine for ten days.
The following day he did not attend court and could not be contacted. The trial was adjourned to 6 September.
But on 3 September, he sent an email saying he wanted to withdraw from the trial. He said he had not been paid by his clients and he had another criminal matter in Lady Frere starting on 6 September. He asked to be excused on that day. The judge refused.
Gladile did not pitch up on 6 September. Judge Gamble contacted the judge in Lady Frere and “collegially requested” him to inform Gladile that he was required to appear before him at midday the following day.
Gladile arrived 15 minutes late, saying his taxi had been delayed.
Judge Gamble said he had granted Gladile leave to withdraw from the case “in the interests of justice”.
“He has a very poor record of timekeeping, something which is not in the interests of the accused or other parties involved in this litigation.
“Bluntly put, I believe that permitting him to withdraw is likely to significantly enhance the pace at which this trial progresses, and that will be to the benefit of the court and the accused,” said the judge.
The judge said Gladile’s conduct warranted the attention of the LPC.
Specifically, the delays in the first week of the trial attributable to his “misconduct and blatant dishonesty”.
“He lied to this court about his medical condition. His conduct in this regard is to be deprecated in the strongest terms. A court takes counsel at his or her own word, because counsel owes a duty of absolute honesty to the court. Putting up false explanations to explain absences from court is inimical to the professional duties of an advocate,” said the judge.
The judge said a further delay of nine court days, from August 24 to September 6, was based on a medical certificate presented by Gladile, leading the court to believe that he had to self-isolate. Meanwhile he had taken public transport for ten hours to the Eastern Cape and had been involved in a four-day trial in another town.
“This court does not know whether the symptoms described to the doctor, recorded in the medical certificate, were genuine or not. If they were and he was sick, he had no entitlement to travel to the Eastern Cape to attend to a partly-heard matter.
“He was manifestly in breach of the State of Disaster Regulations … there to protect all of us … He showed he did not care anything for his fellow man.”
Judge Gamble said he unfortunately could not order Gladile to pay for wasted costs.
“It is regrettable that the Minister of Justice and Correctional Services has not seen fit to bring that section into operation. One hears day in and day out of the costs of court appearances being caused by dilatory defences and attitudes adopted by accused persons. It costs the taxpayer millions and millions of rands every year,” the judge said.
However, he made an order in terms of the Criminal Procedure Act referring the advocate’s conduct to the LPC. His conduct “falls woefully short of the standard of professional behaviour”.
“I have set out my reasons in full so that counsel who conduct themselves in such a fashion in future might appreciate what fate awaits them.”
The judge apologised to the accused who have been in custody for almost five years.
“It is unacceptable to the court that there have been delays in litigation caused by counsel who has acted only in furtherance of his own selfish interests. I trust that such a situation will not arise again in the finalisation of the matter,” he said.