After withdrawing services to businessman Lunga Kunene in his battle against ANC big shot Mathews Phosa and Russian magnate Luda Roytblat, top law firm ENSAfrica thought the chapter was closed, but they were wrong.
Lawyers for Phosa and Roytblat told ENSAfrica on October 10 that they denied any pending legal dispute between the parties was “moot” as a result of the law firm’s decision to dump Kunene and his KwaZulu-Natal-based Umsobomvu coal mine as clients.
“It is our instructions that your offices will be called to answer for the unlawful actions described in our clients’ application,” reads a letter from Udell Hammond-Smith.
“We are further unsure what your office’s point is in so far as the fact that you no longer represent Kunene or Umsobomvu, if anything, that only strengthens our clients’ case,” said Hammond-Smith.
On October 6, ENSAfrica wrote to Hammond-Smith Attorneys in response to the latter’s referral of the “Drone Application” to trial which was served on September 22.
It is alleged in the case that ENSAfrica allowed Kunene to illegally collect information on the mine property using a drone.
Kunene had visited the coal mining site and allegedly flown a drone into the premises to take pictures as part of his evidence against Phosa and Roytblat.
ENSAfrica warned Hammond-Smith Attorneys that since the firm had withdrawn as attorneys of record, “we propose that the Drone Application, together with the application to refer the Drone Application to trial, be withdrawn”.
“In the event that you elect to proceed with the Drone Application and the application to refer the Drone Application to trial as against ENSAfrica, we will oppose the application and seek a punitive costs order,” the law firm said.
Intention to oppose
ENSAfrica sought a response by October 9, warning simultaneously that it intends to file a notice of intention to oppose as a precautionary measure.
“We will, of course, withdraw this if the matters as against ENSAfrica are withdrawn by your clients, as proposed”.
On October 9, ENSAfrica wrote back. “The purpose of our letter is to place on record our opposition to your clients’ application to refer its dispute against ENSafrica in the above matter to trial and to afford your clients the opportunity to withdraw this ill-considered course of conduct and the application itself.
“To your clients’ knowledge, the interdictory relief claimed in its original notice of motion is now moot, as against ENSAfrica, because we are no longer attorneys of record on behalf of Mr Kunene and Umsobomvu,” the firm said.
It added: “To the extent that your clients persist with their amended relief, that relief was sought only at a time after all papers had been filed and when they were already aware of the disputes of fact between the parties.
“It was accordingly never relief that could have been granted on the papers.”
ENSAfrica proposed that Phosa and Roytblat “withdraw the principal application as against ENSAfrica on the basis that each party pays its own costs, failing which, we will continue with our opposition to the application for a referral to trial and ask that the referral application and the original application both be dismissed with punitive costs”.
In the absence of a withdrawal, the firm said it would be forced to file an answering affidavit opposing the application to refer the matter to trial, and would include a copy of that letter in that affidavit.
But Hammond-Smith Attorneys were not swayed, saying on October 10 that “it is our clients’ intention to pursue the matter, as we will do”.
“Lastly, we note that your office’s decision to oppose the application has come at a late stage, and we also note that your office’s opposition is based on the fact that your office intended to use its purported opposition as a bargaining tool for our client to withdraw its application against your office.
“It is our instruction that your office’s approach in this regard borders on being extortionate”.
Hammond-Smith said ENSAfrica was cited separately in the application, and the firm’s relationship with Kunene and Umsobomvu had nothing to do with their conduct in the wrongful acts allegedly committed.
