After hearing the list of issues under dispute, a committee of the Legal Practice Council (LPC) last week postponed to February a complaint by ANC veteran and lawyer Mathews Phosa against top law firm ENSAfrica.
Ahead of the hearing, ENSAfrica was itching for the proceedings to get going, declining Phosa’s request for a postponement due to unavailability.
“This matter has been widely publicised and our firm and professionals have been maligned in the absence of cogent evidence or wrongdoing being presented by the complainant,” Africa’s largest law firm protested in a letter to the LPC on October 10.
“To leave the matter unresolved until February 2024 [and possibly later] results in further prejudice to our firm and our professionals.
“It is not acceptable for the complainant to renege on the agreement reached, purely for his personal convenience. We urge the LPC to restrain such prejudicial conduct.
“In the circumstances, we call upon the LPC to direct that the hearing will proceed on 30 October 2023, so that this matter can be resolved expeditiously, as agreed”.
When the date finally arrived last Thursday, ENSAfrica brought the big guns, including advocate Azhar Bham (SC), who faced off against attorney Udell Hammond.
Advocate not ready to proceed
But just as the proceedings gained steam, it was clear that only Hammond was fully prepared, while Bham pleaded that he was not aware of some documents.
He needed time to file a reply to the “new allegations”.
The committee disagreed.
Hammond did not oppose the proposed postponement, but the request to file further submissions.
Bahm was unhappy, saying ENSAfrica would file for leave should they feel it is necessary to file anything further.
The hearing was part of Phosa’s complaint against ENSAfrica’s lawyers, Senzo Mbatha and Tumi Modubu.
The sitting went over the specifics of the claims that the three-person LPC committee is going to make a decision on.
Phosa and Russian-born magnate Luda Roytblat, under a company called Transasia, entered into a sale agreement in 2010 with ENSAfrica client and businessman Lunga Kunene on the mining rights to the KwaZulu-Natal-based Umsobomvu Coal mine.
However, according to ENSAfrica, the agreement for the sale of prospecting rights was canceled in 2017 due to Phosa’s team’s failure to obtain ministerial consent.
Ministers cited as respondents
One of the disputes before the LPC, under the heading “notice to abide”, was the claim that ENSAfrica cited Minister of Mineral Resources Gwede Mantashe and Police Minister Bheki Cele as respondents in a high court matter but failed to serve them.
Instead, Aubrey Milford, an official in the state attorney’s office who has allegedly resigned, issued a notice to abide on behalf of the two ministers without their knowledge.
On the basis of the information before the court, Kunene secured a court order in his favour, but a case of fraud was opened against ENSAfrica.
The LPC heard that the state attorney refused to receive the documents as recorded on the statement of the Sheriff, and ENSAfrica was well-aware that the documents were not served but continued with the knowledge that the case could not proceed because the respondents that they sought relief from were not served.
It was alleged that ENSAfrica deliberately intended to get a fraudulent judgment.
The LPC also heard of alleged collusion between ENSAfrica and Milford on the same grounds that the law firm knew that the state attorney refused to be served and knew that no state attorney was acting because they had not been served.
But ENSAfrica allegedly demanded from Milford a notice to abide when he was not appointed as the state attorney.
Milford allegedly colluded with ENSAfrica and issued a notice to abide, knowing that he was not appointed.
According to complainants, ENSAfrica and Milford knowingly committed fraud and prejudiced four state organs and two ministers through their collusion, fraud, corruption, and defeating the ends of justice.
“The minister of police and minister of mineral [resources] had no knowledge about the proceedings. If they had known, they would have opposed it as detailed in the statements,” the LPC heard.
Milford was absent during the hearing on Thursday, but the committee agreed that his earlier written submissions were sufficient.
Ethical standards allegedly compromised
In the second dispute under the heading “Non-joinder of Transasia”, ENSAfrica stood accused of dishonesty.
It was alleged that he compromised the ethical standards prescribed by the code or any other ethical standards recognised by the legal profession.
The claim was about a default high court order that ENSAfrica got for Kunene to see documents about the transfer of the disputed coal mining rights to Transasia.
Transasia was not a party to the proceedings but had an interest in them.
Transasia alleged that the intention was to gain access to the company’s confidential records, including financial statements.
The third dispute under the heading “drone issue” focused on allegations that ENSAfrica advised Kunene to “knowingly make an untrue statement”.
Lawyers for Phosa, Hammond-Smith Attorneys, argued that “ENSAfrica gave unlawful instruction to their client to sign that the [mine] land belonged to their client; otherwise, the drone operator would not be authorised to deploy the drone [over the property]”.
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 in his several legal disputes against Phosa and Roytblat.
