Durban - An independent advocate and an attorney have been asked by Durban High Court Judge Dhaya Pillay to explain their involvement in two urgent applications or face paying the costs out of their own pockets.
This is the second incident in the past three months in which an independent advocate has been asked to explain to the court.
In the two cases, which Judge Pillay heard last week, she ordered attorney Yegan Moodley and independent advocate Ian Naicker to explain in affidavits this week the “facts and circumstances upon which they received instructions in the cases” and why they should not pay the costs of the applications.
Advocates can only act in cases after they have been briefed by an instructing attorney.
Speaking to The Mercury on Friday, Naicker said he and Moodley had been properly instructed in both cases and there was nothing untoward about it.
He said he and Moodley were acting pro bono in the cases and other similar matters.
The court had been dealing with an application brought by Arjun and Susheila Govender against the sheriff of Chatsworth and First Rand Bank Limited.
A second similar application had been brought by Ebrahim Moosa against the sheriff of Chatsworth and Absa Bank Limited.
Arjun Govender and Moosa claimed to have drafted the court papers themselves and signed the notice of motion, which is usually signed by an attorney - on the same day that Naicker had signed certificates to indicate that the matters were urgent.
In their applications, the Govenders and Moosa said their homes, which had been declared exeIcutable after they had failed to make bond repayments, had been sold by the sheriff for much less than their market value.
They asked for the sales of the properties to be interdicted and that they be refunded the difference between the sale price and market value by the sheriff.
Judge Pillay dismissed both applications and in the Govenders’ case said the way the “destitute” couple had been advised was “unfortunate”. She said crucial information had been missing from their application. She also said there was a “conflict” over whether the Govenders had drafted the papers themselves.
In May, independent advocate Cornelia Ludick was ordered to personally pay the bank’s costs in an application to stop the sale of a couple’s home.
In that case, Ludick was asked to to file an affidavit to explain who had instructed her in a case in which it was alleged that a law firm’s name had been fraudulently used.
KwaZulu-Natal Society of Advocates chairman Rajesh Choudree said on Sunday that while the society did not have authority over independent advocates, who are not members of the society, it could investigate complaints received from the court or the public.
He said if the judge referred the matter to the society, an inquiry would be held to determine if there was misconduct.
He also warned that the public should be “vigilant” when taking cases to court.
“Desperate people should not be gullible. They should approach professionals who were governed by long-standing authorities who were there to uphold the profession.”
Mercury