Lekganyane dazzles Ndadi
Staff Writer | Friday August 10, 2018 13:49
He only came to discover the legal weapon he missed days after the Court of Appeal’s (CoA) session had concluded.
By the time attorney Ndadi realised that he could have used a legal point in Lekganyane’s papers to his own advantage and possibly knock-off the appeal’s case, it was not only too late, but also dangerous.
He dared to test the waters and snuck in ‘additional heads’ in an attempt to rescue the case.
That did not prove to be a smart move, as that action earned Ndadi a stinging tongue lashing from the CoA Justice Monametsi Gaongalelwe, who described Ndadi’s actions of sneaking in ‘additional papers’ in all negative expletives he could lash out.
Not the ideal moment for a respected lawyer on a day when he had also lost all that he thought he had won for his clients at the High Court before this appeal by Lekganyane and the ZCC.
As if he saw it coming, Ndadi had even pleaded with the court to be lenient with his clients when considering the issue of awarding cost of suit in the event his clients lost, something that the judge refused with an emphatic “No”.
To lose the appeal is one thing, but to be admonished for unethical and unprofessional conduct for the same case one lost, must be something else if not entirely gutting.
Justice Gaongalelwe dedicated a significant portion of his judgement to bashing the respected attorney after he was found to have snuck in documents trying to argue afresh a legal point, which he had earlier lost in an open court.
Ndadi had submitted to ZCC and Bishop Lekganyane’s lawyer, Daniel Swabi the point that he (Swabi) had the no powers of attorney to represent the church in appeal matters, but he (Ndadi) would later sneak in ‘additional heads’ showing he was reneging from the earlier admission, earning the wrath of the judge in the process.
In the new papers, Ndadi argued that the power of attorney was given to someone else, one Ephraim Mafetsa and not the current attorney; but the Judge was not amused as he described Ndadi’s conduct with such words as, ‘sneaking documents’, ‘ambushing the other party’, highly undesirable, impermissible…”
“It is noteworthy that when counsel’s (Ndadi) attention was drawn to the above (point) during argument, he did not offer any further submissions on the issue.
“What is disturbing, however, is that a few days later, on July 10, Ndadi filed a document purporting to contain respondents’ additional heads of argument.
“This document, which was filed days after conclusion of the hearing, offends against the rule of finality.
“It takes the other side by surprise even if served on them. More particularly, it is highly undesirable and impermissible for the attorney to openly concede during submissions and later sneak in some argument showing he was reneging from the concession made in court,” Gaongalelwe blasted.
“Generally such conduct is unprofessional and can only be described as an ambush. On such basis, as a mark of disapproval I will not take arguments therein into consideration if at all they could make any difference, which I doubt,” Gaongalelwe lashed out at the attorney.
It was a day not to forget, as the CoA went on to knock down just every point Ndadi had earlier won at the High Court for his clients, the 17 Tlokweng ZCC members who were refusing disciplinary action against them by their church.
The Judge even found that ZCC Bishop, who resides in Moria, cannot by law be prosecuted in Botswana courts as they do not have powers in South Africa.
“The law is that the court’s jurisdiction over a natural person is generally based on whether an order made against the said person would be effective.
“Where such a person is neither domiciled nor a resident in a particular country, the courts of such country would have no jurisdiction over him.
“It follows that the court did not have jurisdiction over Lekganyane, and any orders purporting to interdict him would be a nullity,” Justice Gaongalelwe said in part as he overturned the earlier judgement delivered by Justice Godfrey Nthomiwa at the Lobatse High Court.
Gaongalelwe said although the defendants’ attorney, Ndadi had objected to the point being raised, arguing that it was never raised at the High Court, it was the duty of an appellate tribunal to ascertain whether the High Court came to the correct conclusion on the case submitted to it.
“The mere fact that a point of law brought to its notice was not taken at an earlier stage is not in itself a sufficient reason for refusing to give effect to it,” Justice Gaongalelwe said, adding that if the point is covered by the pleadings and also if its consideration on appeal involves no unfairness to the party against whom it is directed, “the court is bound to deal with it,” he said quoting South African case law.
Gaongalelwe also quashed the orders issued against the ZCC and Lekganyane in the earlier judgement, saying what was meant to be interim orders clearly point to the orders being in the nature of final interdicts.
“An interim interdict is only provisional by nature in that the same court may later undo it by discharging the rule.
“In this case, the orders granted are by their nature such that it is only an appellate court that could set them aside. They are not orders granted pedente lite.”
Gaongalelwe said the next point would be whether the 11 Tlokweng ZCC members had satisfied the requirements of a final interdict.
“For such an interdict they had to establish a clear right, a well grounded apprehension of harm in the absence of a satisfactory alternative remedy.
“They could not possibly claim that they had a right not to be called for a disciplinary hearing whose outcome would be determined by evidence. It is clear that the nature of the evidence, which would be adduced was, and still is unknown.
“The second requirement is that there must be a well grounded apprehension of injury or irreparable harm.
“In the founding affidavits, it is said that the fear was that if they appeared before the Disciplinary Tribunal at the time stated, they would be found guilty and expelled from the church. “The law is that the apprehension must be a reasonable one. In this matter, the fears are only speculative,” found justice Gaongalelwe.
The judge said even if the wayward Tlokweng ZCC members were to be expelled from the church as they feared, they could still take up the matter with other structures of the church or even to court for review.
Gaongalelwe concluded that on the strength of all the issues addressed above, the appeal succeeds and that the earlier orders by the High Court are set aside.
The losing parties were ordered to pay the full costs of the case.
Lekganyane and the ZCC church were represented by two South African senior counsels instructed by Swabi.