Frivilous litigation in spotlight

• Scathing judgment highlights a dubious practice

An early January 2024 case in the North West high court in Mafikeng, Strydom and Another v Coomans and Others (M533/2021) [2024] ZANWHC 6 (January 8 2024), should make frivolous litigating attorneys sit up and take notice.

In a scathing judgment, FMM Reid J highlighted a dubious practice had been developing in the division where attorneys request reasons on senseless bases.

For example: where a matter has been removed from the unopposed motion roll on request of both parties or by notice of removal, where matters are postponed by agreement between the parties, or where written judgments have been provided setting out the reasons for the judgment.

In my view this amounts to nothing other than mindless or frivolous litigation and hints at a fee-generating practice.

According to the judge, it is concerning that an attorneys’ firm requests reasons for a judgment where a written judgment, which includes the reasons for the judgment and order, has already been handed down.

To my mind, this indicates that the attorney did either one of the following:

● He/she did not bother to read the judgment;

● In the event that only the order was received without the judgment, the attorney did not enquire from the registrar of the court or the judges ’ secretary whether a written judgment has been handed down to obtain same.

The request for reasons where reasons have been provided in a written judgment was seen by the judge to indicate that the request was nothing but a “kneejerk” reaction by the attorney without applying his/her mind to the matter.

When an officer of court acts in legal processes without applying their mind, it not only fails to serve the interest of justice, but actually and factually prejudices his/her own client.

In addition to the injustice alluded to above, the action of an attorney asking reasons where reasons have been provided, adds to the increasing workload of the judiciary.

So the applicant attorneys here faced the wrath of the court: no fees.

The court said an order that precludes a legal practitioner costs for frivolous, mindless and/or thoughtless litigation process, such as in this instance where reasons are requested for a judgment where the reasons are contained in the judgment itself, will motivate legal practitioners to apply their mind to their actions.

The judge summed up the message for the legal fraternity well: “In my view this, in turn, will prevent precious judicial time being wasted on responding to a request for reasons where reasons have been provided in the judgment itself.”

As SA faces intense legal battles at home and abroad, it is imperative judges can focus and deliver powerful rulings. Yet with only about 250 judges across nine provinces, their workload is enormous.

Consider the Labour Court, where court rolls were so clogged that as from October 2022, the court has not been able to enrol any new trials until 2024. The number of cases beggars belief — 4,307 cases in 2021/22 alone — and there are only 14 labour court judges in SA.

This is why Justice Reid’s frustration is so palpable and almost jumps off the page. Yes, we desperately need more judges and courtrooms. But ending frivolous litigation is an equally good place to start righting the ship.

AS SA FACES LEGAL BATTLES AT HOME AND ABROAD, IT IS IMPERATIVE JUDGES CAN FOCUS AND DELIVER POWERFUL RULINGS