The ENS Africa lawyers sparring with ANC veteran and lawyer Mathews Phosa before the Legal Practice Council (LPC) claim that his complaint of misconduct against them is simply a punishment for doing their job, but he insists that the response is a trail of lies.
“I will display below that what has been filed by ENS does not assist ENS and instead serves to support my version,” Phosa hit back on Friday in a response to the ENS submission dated November 30 last year.
As far back as 2021, Phosa complained to the LPC’s regulatory department of alleged unethical conduct on the part of ENS executives Tumi Modubu and Senzo Mbatha, arising from a longstanding dispute over the purchase and ownership of a coal mine in KwaZulu-Natal.
In its submission to the LPC in November, ENS argued that the complaints against its executives were very serious and sought to impugn Mbatha and Modubu’s integrity.
“The complaints are driven by Phosa’s displeasure at the fact that we properly and vigorously represented our client (which happened to be the litigation adversary of certain entities in which Phosa has a personal interest),” the LPC heard.
The argument was in support of the application to allow ENS to file a reply to a submission Phosa made in October, which they claim was an “ambush.”
ENS faced three allegations before the LPC, including that the prestigious law firm colluded in 2019 with a former state attorney official, Aubrey Milford, to commit fraud when filing a notice to abide by the court decision on behalf of Mineral Resources Minister Gwede Mantashe, without his knowledge.
Further complaints include failure to join Phosa’s partners at Transasia Minerals in the application to obtain the record of the transfer of mining rights to the company from the department of mineral resources.
Lastly, Phosa accused ENS executives of encouraging their client, businessman Lunga Kunene’s Umsobomvu Coal, to illegally fly a drone over the coal mine property and take pictures while falsely telling the drone operator Kunene owned the property.
ENS said Phosa’s approach was inappropriate. “Mbatha and Modubu were doing their jobs (with the advice of counsel). Even if they were wrong (which is denied), that does not mean that they acted unethically.”
But Phosa had a different take. He said ENS had a moral and ethical duty to inform Transasia of its attempt to gain access to information, where it knew that Transasia disputed Umsobomvu and ENS right to access that information as parts of that record were confidential.
Regarding the drone, he said the only question before the LPC on this point is whether ENS lied to drone operator Andrew Martens by telling. “The answer to that question is quite simply yes.
He said the court order that granted Kunene access to the mine property was under appeal and overtaken by events after Transasia obtained the mining rights. According to Milford’s own account, he never received any authorisation from the minister of minerals to issue the fraudulent notice that served as the basis for the order.