23 April 2024
Illustration: Lisa Nelson
Suspended National Lotteries Commission (NLC) company secretary Nompumelelo Nene has been ordered to pay punitive costs in her failed urgent legal bid to halt disciplinary proceedings against her.
In March, Nene’s urgent application was struck from the roll by Johannesburg High Court Judge Stuart Wilson after finding it was without merit.
At that time, the judge ordered her attorneys to make submissions as to why they should not pay the costs personally and on a punitive scale.
But in his ruling, he has now put the blame for the hopeless application on Nene herself, saying as an admitted advocate and a senior corporate lawyer, she should have known better.
Nene was one of five key staff members placed on suspension in 2022 following a crackdown on corruption in the NLC.
On 5 March, she launched urgent High Court proceedings which came before Judge Wilson, claiming her dismissal was a foregone conclusion and should the hearing continue, she would be subjected to undue financial hardship and a dismissal on her record, meaning she would struggle to secure alternative employment.
She also claimed a number of violations to her constitutional rights.
She wanted her disciplinary hearing, set down for later in March, to be stayed.
But the NLC’s lawyers argued that the application was an ”abuse”, was not urgent, was meritless, poorly conceived, and its only real purpose was to delay the disciplinary hearing.
They argued that her lawyers had acted recklessly and should be punished with a personal, punitive cost order.
In his ruling on the cost issue on 22 April, Judge Wilson re-iterated that the urgent application was “so devoid of substance” that it warranted a punitive cost order.
“Urgent court is for truly urgent matters,” he said.
“Enrolling a matter on an urgent basis without so much as attempting to set out an urgent cause of action based on primary facts … is a waste of a court’s time.”
“The Deputy Judge President of this court has repeatedly warned that the abuse of the urgent roll is widespread and should be penalised. Ms Nene’s case is a good example of such abuse.”
He said the failure to set out “even the slenderest cause of action” raised questions about whether Nene was properly advised.
Her attorney, Amanda Vilakazi, had not even attended court.
When Nene appeared unwilling to allow her advocate to argue the case as he saw fit, he had withdrawn.
Judge Wilson said Vilakazi ought to have advised Nene of the “reality” that her case was bad.
The least Vilakazi should have done was to attend court.
It was for this reason that he ordered Vilakazi to file an affidavit setting out reasons why she should not personally pay the costs.
In her affidavit, Vilakazi said she had acted for Nene pro bono. She said Nene had drafted the papers herself. On the day of the hearing, she had been at a conference but was available on her phone and she had sent a candidate attorney to court.
Judge Wilson said while her conduct “fell short of the standard of conduct expected from a reasonable legal practitioner”, the NLC’s lawyers appeared to have some sympathy for the fact that she was acting pro bono and withdrew their request that she pay the costs personally.
“In my view, however, the fact that the litigation was undertaken pro bono does not in itself mitigate Ms Vilikazi’s conduct. Pro bono litigation generally demands more, not less, of legal practitioners.
“Litigants represented pro bono are generally less familiar with the legal process, less able to identify the facts relevant to their claim and more in need of sensitive counselling in order to develop and implement the options open to them.
“That said, Ms Nene is no ordinary pro bono litigant. She is an admitted advocate and a senior corporate lawyer. She drafted her own papers. She ought to have known that they failed to make out a case.
“She, more than most, ought to have known better.”
Judge Wilson said while the NLC lawyers were no longer seeking personal costs against the attorney, a punitive cost order was still necessary and Nene, who was an empowered litigant, ought to bear the consequences.
He ordered that Nene personally pay the costs of the urgent application on a punitive scale, including the NLC’s costs in engaging two advocates to argue the matter.