Durban - Two legal professionals who claimed to be “helping the poor” have been ordered to personally pay the costs for three defective high court applications.
Independent advocate Ian Naicker and attorney Yaganandhan Govender were acting in the three cases brought against banks and the sheriffs’ offices to interdict the auctions of their clients’ homes. But the sales had already taken place and Judge Dhaya Pillay found that, apart from this, there were other glaring defects in the applications.
She dismissed the applications as there was no legal basis for them – which was admitted by Naicker – and also questioned the conduct of both Govender and Naicker.
In all the matters, papers had been filed and the certificates of urgency signed by Naicker before being seen by Govender. Advocates can only take on cases after they have been briefed by attorneys and cannot deal with clients directly.
The matter was back in court on Friday as Judge Pillay had ordered the men to explain why she should not make a costs order against them. While both insisted that they should not have to pay, she ordered Govender to pay one third of the costs in the applications and Naicker to pay the remaining two thirds. She also ordered that the matter be referred to advocate Rajesh Choudree SC, chairman of the KwaZulu-Natal Society of Advocates, and the KZN Law Society.
In her judgment, she dismissed Govender’s argument that he had acted as a “puppet” who had been helping out Naicker, his friend. She said he should have been aware of the problems with the applications. “Attorneys are not allowed to act like puppets, they must apply their minds.” She said while Govender had apologised to the court for his actions, Naicker did not appreciate the wrongfulness of what he had done and his conduct should be investigated further.
“Given the nature of the transgressions and the manifest lack of understanding of the law, I have to refer this matter to the KZN Society of Advocates. Without some correction to his conduct, his other clients would be at risk.” Earlier in the hearing, advocate Dees Ramdhani, who was acting for the banks in two of the applications, said he had been “greatly disturbed” by the highly unprofessional conduct. “This is not how you help the poor,” he said.
Naicker had argued that he had believed in the matters. He said he had hoped to get sympathy from the court and leniency for his clients. He also claimed that some judges were becoming “players and referees” and he wished to report the matter to the Judical Service Commission. When asked which judge he was referring to, Naicker reluctantly indicated that it was Judge Pillay.
He said his clients were upset by the way they were treated in court last Friday, when the matter was before Judge Pillay, and felt they were “schoolchildren who were lined up to have their bottoms smacked”.
This is the second incident in which an independent advocate has been ordered to personally pay costs in an application. In May, advocate Cornelia Ludick was ordered to personally pay costs in a similar application and the matter was referred to the KZN Society of Advocates.
The Mercury