ENSAfrica lawyer, client should face contempt case – Ngcukaitobi

Advocate Tembeka Ngcukaitobi on Tuesday ripped apart the request from ENSAfrica that Pretoria High Court deputy judge president Aubrey Ledwaba remove a contempt of court hearing against a client and one of their lawyers from the court roll on May 22.

Ngcukaitobi came close to accusing ENSAfrica of seeking special treatment from Ledwaba, saying that any litigant who wanted a matter postponed should plead their case before the sitting judge allocated for the case, and not via the office of the judge president.

“If any party wants a postponement, the ordinary way to get a postponement [is that] you go to that judge,” said Ngcukaitobi.

“In the short video clip of the meeting, which Sunday World has seen, Ledwaba nodded in concurrence and added that ‘the judge is already allocated’ for the case.”

Ngcukaitobi said he disagreed with ENSAfrica’s ploy to use Ledwaba’s office “to interfere with the allocation of cases that have already been allocated, particularly where they seek to delay the hearing of the case”.

He continued: “Because what is being sought of you is that you should tell the registrar to remove the 22nd of May and to put the matter to [an indefinite] postponement.

“We say that is wrong. Because what should happen is that the registrar’s date should be preserved, the matter should be heard, there is obviously going to be a judge allocated for the 22nd of May.”

In a letter dated April 11, ENSAfrica had requested Ledwaba not to set the contempt of court matter down. The case involves its clients, Umsobomvu Coal miner and its owner Lunga Kunene, and one of the law firm’s lawyers, Senzo Mbatha.

ENSAfrica argued that 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 Mineral Resources and Energy on the transfer of mineral rights to coal miner TransAsia Minerals SA.

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”.

During a Zoom meeting with Ledwaba on Tuesday, Ncgukaitobi was briefed by Mabuza Attorneys.

Setting up the backdrop to his argument, Nguckaitobi told Ledwaba that the reason the matter was brought to his office was that ENSAfrica says the date of May 22 should be removed to an indefinite date until the appeal on the subpoena has been decided.

“We say, the contempt of court is a separate issue whether or not the subpoena is subsequently set aside is irrelevant to whether at the time they issued they were in contempt.

“In any case, it is unrelated because the contempt relates to their conduct in relation to parallel proceedings that are before the supreme court of appeal, on a different matter altogether.”

He continued: “But that does not matter, because you do not have to decide any of those disputes whether they are right or we are right. Because right now the registrar has given the 22nd of May. You do not have to interfere with that allocation.”

He added that “if ENS want a postponement, they must bring the application before the judge that would be allocated the matter on the 22nd of May”.

“If they have good ground for a postponement, which they claim to have, they will get the postponement. They might even get costs against us.

“If they don’t have a good ground for a postponement, the matter would be heard on the 22nd of May.”

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