After failing to persuade Pretoria High Court deputy judge president Aubrey Ledwaba to postpone a contempt of court case already set down for hearing, law firm ENSAfrica has turned to the judge who is allocated the matter, with the same request.
According to ENSAfrica, Ledwaba informed them during a case management meeting on May 9 that any correspondence pertaining thereto should be directed to judge David Makhoba, who will be the senior judge in the week of May 22, the date set down for the hearing.
In the arguments before Ledwaba, the applicants, represented by advocate Tembeka Ngcukaitobi SC, had argued that ENSAfrica should apply for a postponement in the normal course before the judge allocated to hear the case, and in the short video clip of the meeting, Ledwaba had nodded in agreement.
But in the letter to Makhoba dated May 10, ENSAfrica instead preferred that the issue be not addressed in open court, but in the judge’s chambers.
The letter also expands, for the first time, on their argument why the contempt of court case against the three co-defendants – Umsobomvu Coal miner, mine owner Lunga Kunene, and ENSAfrica lawyer Senzo Mbatha – should not be heard on May 22.
Mbatha, who is also a co-defendants, co-authored the letter with a colleague Tumi Modubu.
He said that the applicants, TransAsia Minerals and its subsidiary TransAsia 444, had elected to pursue two forms of relief in an urgent application already heard in March.
“The one pertained to the setting aside of the subpoena [on the basis that it allegedly amounted to an abuse of process] and the second pertained to the alleged contempt [or constructive contempt] of court,” he said.
He said on March 16, judge Harshila Koovertjie heard the urgent application and found on March 24 that the matter was urgent only as far as it related to the subpoena, while the relief concerning the alleged contempt was not.
Consequently, Koovertjie made findings in respect of the relief seeking the setting aside of the subpoena, said Mbatha, adding that those findings were now on appeal after Koovertjie granted leave to appeal on April 14.
He said it would be grossly unjust and inappropriate to entertain the contempt portion of the application prior to the finalisation of the appeal.
“This is because the allegations concerning the subpoena [and the alleged abuse of process in issuing the subpoena] are inextricably linked to the allegations concerning the alleged contempt and is the very reason why the two forms of relief were rolled up into a single application by the applicants in the first place,” he said.
He added that the appeal should be permitted to be finalised before the contempt portion of the application was heard.
“It is in the interest of justice that the appeal is disposed of before the contempt is disposed of – any other outcome has the potential in the two courts coming to different determinations in respect of the same issue, premised, essentially, on the identical allegations.”
Mbatha alleged that their opponents improperly secured the set down for May 22, but the applicants denied it in their response to Makhoba.
He also complained that communication between the parties had been reported in the media, accusing the opponents of “a smear campaign”, which the opponents also denied.
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