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It’s time we deal decisively with the legal practitioners of Stalingrad tactics

Source: Daily Maverick, 06/11/2023

Finally, the Constitutional Court has awoken from its slumbers and dealt properly with legal representatives who abuse the court process and are deserving of an adverse costs ruling against them.
Affairs and others v Lawyers for Human Rights the Constitutional Court, it was held that the Director-General of Home Affairs pay 25% of applicable costs in his personal capacity and that the fees of the minister’s former legal representatives should be disallowed. Leave aside the extraordinary behaviour of the DG who appears to have kept his own minister in the dark.
This column is about lawyers.
According to the court, the minister’s sometime legal representatives “inexplicably approached the court on an urgent ex parte basis for an order that, pending an application to the Constitutional Court or the enactment of remedial legislation in respect of s34 (1) (b) of the Immigration Act, a High Court order remain valid to the extent that it set aside the provisions that a detainee request that his or her detention be confirmed by a court and be replaced with a provision granting an automatic right that a detention be confirmed, by a detainee appearing in person in court”.
The high court also declared s34 (1)(d) of the Act to be constitutionally invalid to the extent that it provided for an extension of the period of detention without affording the detainee a right to appear in court in person at the time the request was made.
On 29 June 2017, the Constitutional Court confirmed these declarations of invalidity and set a timetable of 24 months for amending legislation to be enacted by Parliament. Significantly, it refused to confirm the high court’s reading of words which would have rendered s34 constitutionally valid pending the attempt by Parliament to so amend the Act.
True to form, Parliament failed to meet the deadline set by the Constitutional Court. The minister then launched an urgent application to the Constitutional Court to revive that part of the 2017 high court order which had been set aside by the Constitutional Court and which would have left s34 effectively in play. The minister also launched a similar ex parte application before the high court.
The Constitutional Court found that the then legal representatives for the Department of Home Affairs “had inexplicably” approached the high court on an urgent ex parte basis for an order that pending the application of this court or the enactment of fresh legislation envisaged in the 2017 order, s34 should remain operative. They also approached the Constitutional Court on an ex parte basis in an attempt to revive the high court’s 2017 order.
In both cases, they failed to join the applicant, Lawyers for Human Rights.
They also failed to mention four decisions of the Court that unequivocally held that, while the Court can extend a suspension order before the period of extension expires, it had no power to do so upon the expiry of that date. It also strongly opposed Lawyers for Human Rights’ intervention application by “bizarrely using the inexcusable failure to join LHR by contending that LHR was not party to the proceedings and had no standing to make damning statements”.
The Constitutional Court stated that legal practitioners are “an integral part of our justice system. They must uphold the rule of law diligently and professionally. They owe a high ethical and moral duty to the public in general and in particular to their clients and to the Court.”
Drawing on an article by Constitutional Court Judge Owen Rogers writing extra curially, the Constitutional Court noted that in England, ethical rules governing solicitors and barristers explicitly state that it is improper for a legal representative to make a submission which cannot be regarded as properly arguable. Australian jurisprudence similarly suggests that it is improper for a lawyer to present an argument that he or she knew was bound to fail.
In conclusion, the Court held “that the legitimacy of our judicial system, particularly the courts will fall into disrepute if the shockingly poor conduct of litigation as in the present instances is allowed to go unchecked. The egregious and multiplicity of the shortcomings in the conduct of the legal practitioners in the present case warrant an exceptional order.”
That order was to the effect that these legal representatives were not entitled to charge legal fees for the “services” rendered.
There have been many cases in the past which, at least on a reasonable basis (even on the standard of an average LLB student) legal arguments have been advanced that palpably have no merit other than to postpone an inevitable adverse outcome against a litigant.
All too often, arguments in court have been targeted at the press or the public at large rather than at the courts to gain political mileage for a client without any recourse to a justifiable legal argument. To date, the court has failed to mulct legal practitioners who have conducted themselves in this fashion.
It is significant that the Court has taken this step in this case. It needs to go further in cases in which similar conduct, as described in the judgment based on the ethical responsibility of lawyers and comparative precedent, takes place.
One waits in anticipation for the first time that our apex court will award costs de bonis propriis against a recalcitrant legal practitioner for effectively wasting the time of the court in order to perpetuate an unjustified Stalingrad legal strategy. Or is this precedent as it applied the facts to its order confined to “non-Stalingrad” cases?

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