Ndlovu v Minister of Home Affairs and Another

• Jurisdiction: South Africa
• Judge: Wallis J
• Judgment Date: 21 December 2010
• Citation: 2011 (2) SA 621 (KZD)
• Docket Number: 16425/09
• Hearing Date: 06 December 2010
• Counsel: GD Harpur SC (with D Sridutt) for the applicant. K Govender (with M Jonas) for the respondents.
• Court: KwaZulu-Natal High Court, Durban

Wallis J:

[1] This is a recusal application. It arises in one of 252 cases in which I heard argument on 15, 27 and 29 September 2010. The application for recusal was brought on 26 November 2010. Whilst it relates to only one of the 252 cases, it has been brought by way of a test case, on the basis F that, if it succeeds, I will also recuse myself in the other cases. The circumstances giving rise to the application are the following.

[2] On 21 April 2010 I delivered the eighth Victoria and Griffiths Mxenge lecture at the University of KwaZulu-Natal. My theme was 'Ordinary Justice for Ordinary People', and in the course of the lecture G I looked at various elements of the legal system that provide obstacles to ordinary people obtaining justice from the courts, both criminal and civil. In dealing with lawyers, I proffered some criticism that they benefit from delays, and suggested that the current system of remunerating legal practitioners provides a perverse incentive [1] to delay, by paying them on H a basis that does not encourage bringing matters to a conclusion. I drew attention to the reasons why this is so, and suggested that it would be a fruitful topic for interdisciplinary research, involving the law and economics faculties of our universities, to see if it would be possible to align the fee charging practices of litigation lawyers with the interests of ordinary people, in having cases disposed of timeously and at reasonable I cost.

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A [3] The lecture then went on as follows:

'While on the topic of fees we should beware of following the example of those jurisdictions where contingency fees are the major source of revenue for plaintiffs' lawyers. It is no coincidence that those are the most litigious societies on the planet. And you must not believe the B explanation that this affords access to justice for those who could not otherwise afford it. If it does, that is a mere by-product of what is described by lawyers in the corridors of the courts as drumming up trade. Once again a well-meaning endeavour to assist those who cannot afford legal services provides a perverse incentive for lawyers to profit. This takes a variety of forms. It occurred in our own local courts C in relation to cases on behalf of persons claiming social security grants. There was a natural sympathy for the applicants that disguised what was really happening, which was that governmental inefficiency was exploited to provide a not inconsiderable source of revenue to the legal practitioner riding the bandwagon. Let me mention briefly what happened when the court put an end to this by introducing a practice D directive governing such cases. A year later I was asked to reconsider that practice directive but the evidence led before me showed unequivocally that people having grievances about social security grants were having their problems resolved quicker by following the directive than they had by pursuing legal proceedings. And of course the taxpayer was being saved vast sums in legal fees.

E This is an inevitable consequence of a system of contingency fees. Lawyers will seek out potentially vulnerable targets and then find litigants to pursue them. The litigants hope to benefit from an award and the lawyer hopes to take as much as possible by way of contingency fees. How many smokers really benefited from the enormous settlements negotiated in litigation against the tobacco industry in the F United States? Every lawyer involved did, and the extent of the benefit was enormous. I, and many colleagues, listened amazed at a presentation at an International Bar Association conference a few years ago by one of the lead firms in that litigation, which, even before the payment of the settlement sum paid every employee of a large firm of attorneys a bonus from the proceeds. And yes, I do mean every employee — G clerks, messengers, janitors and telephonists. And this was done before the partners took their cut. The pattern we have encountered here in regard to social security and home affairs cases is currently being repeated in the United Kingdom in cases involving claims against housing authorities, where the claims are modest but the lawyers' fees are much greater. We need to cry out that there is a vast difference H between providing access to justice and the enrichment of lawyers. Whilst I am not in principle opposed to some system of contingency fees it requires safeguards to prevent its exploitation by those who see in it an opportunity to enrich themselves by gaming the system.' [*]

[4] This lecture was published in part 3 of the 2010 South African Law Journal [2] I at the suggestion of a member of staff of the UKZN law faculty. Other than minor grammatical changes, it was published in the form prepared for delivery at the lecture. It is this publication, and particularly

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the passage that I have quoted in extenso, that gives rise to the application A for my recusal. In order to explain why that is so, it is necessary to trace a little of the history of the present home affairs applications.

Background

[5] These are all review applications directed at the Department of B Home Affairs in relation to the issue of identity documents. Cases of this type are commonly referred to as 'home affairs cases'. All the applicants are represented by the same attorneys, Goodway & Buck, and the same counsel. The 252 cases represented all current matters of this type involving that firm. On 25 August 2010 the Judge President directed that they be heard together on 15 September. He designated me as the judge C to deal with the applications and to issue appropriate directions in regard to the hearing.

[6] The background to this direction by the Judge President is briefly as follows. A number of similar cases started to come before this court, D sitting in both Durban and Pietermaritzburg, from 2008 onwards. In 2009 I dealt with a group of such cases in the judgment in Sibiya v Director-General: Home Affairs and Others, and 55 Related Cases. [3] Thereafter, such cases disappeared for a while, but they returned towards the end of 2009. During the January recess the judges then on duty in Durban decided that there should be a consolidated hearing of such E applications, in order to assess whether the issues raised in Sibiya had been addressed. Accordingly, 40 cases came before me on 19 January 2010. At that stage I was informed that only two firms of attorneys, one of them being Goodway & Buck, were currently bringing such applications. It was not possible to deal with those cases on that day, and they were adjourned, by arrangement with the Judge President, to 9 March 2010. F

[7] On 9 March 2010 the one firm of attorneys withdrew all of its cases. That left only those where Goodway & Buck were the attorneys. After argument had commenced, the cases stood down and consent orders G were taken in the remaining cases. In addition, the parties agreed on a process for dealing with all pending cases of clients of the firm Goodway & Buck. This involved the submission of a list of claimants to the department for investigation; liaison between the parties in regard to the status of the applications reflected on the list; and an undertaking by the respondents that, if any further information, documents or applications H were required from applicants, officials would be made available at a time, date and neutral venue to be agreed upon between the parties, for the purpose of obtaining the necessary further information and documents, or for causing the further applications to be made. As the parties thought it desirable to do so, I embodied these arrangements in a consent order drafted by them. I

[8] My understanding of this arrangement was that, whilst these endeavours were being made in good faith to resolve these cases, Goodway & J

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A Buck would not be enrolling further cases for hearing. I informed the Judge President of this in a memorandum that was circulated to the other judges in the division. The relevant portion of the memorandum reads as follows:

'In the result arrangements have been made involving the two firms of B C Attorneys and Goodway & Buck, the State Attorney and the Department for the resolution of all home affairs cases emanating from those firms. I am advised that at present they are the only two firms enrolling such matters before the High Court in the Province. In the result cases coming from these firms should no longer be on the court rolls in this Province and it would be appropriate for any judge before C whom such a cases arises to query why it is on the roll in the light of the arrangements I have described. I was informed by counsel that if any other firm starts to lodge similar applications the approach of the State Attorney's office will be to request them to agree to a similar arrangement or to process their cases through either C Attorneys or Goodway & Buck.

D The result of this should be that, unless the system breaks down, the courts ought not to be troubled with these applications in the future. In the case of Goodway & Buck all questions of costs have been reserved and I have advised the parties that if they are not able to resolve these issues, which they expect to do, they should make arrangements for the E cases to be enrolled at a time when I can deal with those issues.'

[9] My anticipation, that the home affairs cases, at least those emanating from the offices of Goodway & Buck, would be resolved, proved unduly optimistic. The suggested meetings involving applicants and officials of the department were not convened, and other endeavours to address F issues proved unsuccessful. The parties met with me on 17 and 18 August 2010, at which the applicants' legal representatives indicated their firm view that the matters were not capable of resolution and should be set down for...