The day law firm ENSAfrica wanted to avoid finally came last Thursday when the high court in Pretoria listened to arguments in the contempt of court case against its senior partner and a client.
The court was due to first hear ENSAfrica’s case that the matter should not be heard, but the law firm abandoned its longstanding argument just days before the scheduled sitting and instead opted to argue the merits.
The law firm also backed down from the argument that the case was improperly enrolled.
Senzo Mbatha, an ENS lawyer, and client Lunga Kunene, a businessman, were accused of causing the service of an impugned subpoena during an appeal before the Supreme Court of Appeal (SCA) over its validity.
After hearing the arguments, judge Gcina Malindi reserved judgment and adjourned the matter. It is expected that the court will deliver its verdict in the coming weeks.
Advocate Tembeka Ngcukaitobi (SC), representing Transasia Minerals and Transasia 444, said the respondents were guilty of a number of counts of contempt.
In February 2022, when instituting proceedings before judge Nomonde Mngqibisa-Thusi against the Department of Mineral Resources, they failed to cite Transasia Minerals and Transasia 444.
The application dealt with confidential documents relating to coal mining rights and the order was granted by default.
Transasia 444 then applied for leave to appeal and Transasia Minerals for leave to intervene. Judge Anthony Millar granted the intervention request but dismissed a request to appeal.
ENSAfrica was informed in writing on February 3 that both companies had applied to the SCA for leave to appeal.
Two days after the service of the leave to appeal application, Mbatha and Kunene allegedly demanded that the department’s regional manager produce the mining rights records by February 17.
However, the department refused access to the documentation.
This allegedly led to Kunene, Umsobomvu, and Mbatha executing the impugned subpoena in the separate fraud case against Kunene and Umsobomvu.
According to Ngcukaitobi, the terms of the order are clear, and Kunene and MMbatha knew they had no right to access the documents. “The act was malicious,” said Ngcukaitobi.
“By the time Mbatha wrote the letter on February 9, he knew that an application for leave to appeal had been served on him.”
In his view, Mbatha owed a duty not to mislead as an officer of the court.
The respondents, represented by advocate Azhar Bham (SC), argued that the appealed Miller order provided for a confidentiality regime in respect of the documents over which Transasia 444 claimed confidentiality.
The confidentiality regime imposed provided, for example, “that only legal representatives of Umsobomvu and the experts employed by it who signed a confidentiality undertaking would be entitled to have sight of the confidential documents as a matter of first instance”.
Mbatha represented Kunene in criminal proceedings. When the state announced its intention to call as a witness a representative from the department, the impugned subpoena was issued, according to court papers.
Kunene and Mbatha said the subpoena was issued in accordance with the advice received from counsel in the criminal court proceedings, arguing that the subpoena was wholly unrelated to any process currently pending before the SCA.
“The impugned subpoena was issued in the course of rendering professional services to Umsobomvu and Kunene as an accused person in the criminal trial, and both Umsobomvu and Kunene acted on the basis of legal advice received at all relevant times,” argued the defence lawyers.
The court heard that Kunene and Umsobomvu were the accused in criminal proceedings where they were represented by both attorneys and counsel.
“It is uncontentious that they are entitled to a fair trial and, in broad outline within the framework of the Criminal Procedure Act, to seek and acquire information and documentation relevant to their defence,” according to the respondents.
Bham said on Thursday that if Mbatha failed to comply with Miller’s order by issuing the subpoena in the course of providing professional services, which was denied, he did not do so willfully and in bad faith.
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