A letter sent by law firm ENSAfrica to Pretoria high court deputy judge president Aubrey Ledwaba asking him not set down for hearing a case of contempt of court against its clients, has been referred to as an attempt to delay justice by manipulating the court system.
In a letter dated April 11, ENSAfrica requested Ledwaba not the set the matter down , which involves its clients, Umsobomvu Coal miner and its owner Lunga Kunene, and one of the law firm’s lawyers, Senzo Mbatha.
This because, it said, it was appealing a judgment in which a subpoena that led to the contempt of court allegations was set aside. The subpoena was for records held by the Department of Minerals and Energy on the transfer of mineral rights to coal miner TransAsia Minerals SA.
“Pending the finalisation of the appeal proceedings, we respectfully submit that the aforesaid application for contempt cannot be allocated a hearing date on the opposed roll and accordingly request that no date be allocated in the circumstances,” said the law firm.
In response, the opposing parties in the case, Mabuza Attorneys, said they were “astonished by the brazen attempt of ENSAfrica to usurp the authority of the deputy judge president by attempting to dictate that a certain case should not be set down for argument”.
Mabuza Attorneys, acting on behalf of TransAsia Minerals SA and a subsidiary, Trans-Asia 444, said there was “no substance to the request”.
“The contempt proceedings are separate and distinct from the pending leave to appeal concerning the subpoena.
“This is made clear in the judgment, which struck the contempt application and granted the application for the setting aside of the subpoena,” said
lawyer Eric Mabuza in a letter dated April 12.
“The request is, therefore, a transparent attempt to prevent or delay the finalisation of the contempt proceedings.
An attorney cannot deliberately make themselves a party to delay the finalisation of proceedings. In fact, the duty of an attorney is to ensure the expeditious resolution of disputes.”
He said it was ironic that the contempt charges came up after ENSAfrica tried to enforce a subpoena granted by the high court when an appeal against the subpoena had already been lodged with the Supreme Court of Appeal in Bloemfontein.
He said ENSAfrica’s attempts to undermine the authority of the appeal court led to the urgent application on February 27, in which the subpoena was set aside, but the contempt charge was struck off the roll for lack of urgency.
The urgent application was heard on March 16 and in a judgment on March 24, Judge Harshila Kooverjie ruled that TransAsia Minerals and its subsidiary “failed to satisfy the court that [the contempt issue] should be dealt with on an urgent basis”.
Kooverjie agreed with ENSAfrica that “this issue can be dealt with in the normal course of the proceedings”.
Consequently, on April 5 TransAsia Minerals SA and TransAsia 444 enrolled the contempt charge on the opposed roll of the Pretoria high court.
ENSAfrica told Ledwaba the matter was enrolled while the period to appeal against the urgent court’s decision to set aside the subpoena had not expired.
According to a “notice of set down” Sunday World saw, on April 19 the contempt case was set down for hearing on May 22.
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