I will in due course chronicle some bizarre conduct of the late Didcott and Kriek, two erstwhile Natal Judges, and some other Natal judges. that includes the former Judge President of Natal, Judge Howard. The conduct that I will deal with eclipses the bizarre illegal judgement to which Thabo Mbeki was exposed.
Move over Judge Hlope – look at how some Apartheid era Natal judges misbehaved!
A South African Courtcom Trilogy
Any person who often watches TV would have come across the terms “sitcom” and “romcom”, the latter being a romantic comedy. What follows has all the makings of a “Courtcom”, albeit that the people on the receiving end of bizarre goings-on in the erstwhile Natal Provincial Division of the Supreme Court, as described herein, did not regard what happened to them as funny.
Botha v Web-the first tragedy in the trilogy
Rough justice indeed!
On 12 November 1979 the Natal Provincial Division of the Supreme Court of South Africa (as the High Court of this country was known at the time) handed down a judgement in the appeal matter of Webb and Others v Botha, to which I shall herein refer to as the “Botha case”. The judgement was a culmination of legal atrocities that included a plethora of procedural irregularities perpetrated by the presiding judges and a character assassination inflicted on the attorney of the respondent in the matter, Mrs. Amanda Lanza Botha. Sadly so, the unconscionable behaviour of the judges also led to the demise of the respondent’s case and caused her to lose complete faith in the credibility of the administration of justice in South African. And, as would appear from what follows, all of the atrocities were made possible, not only by the fraudulent conduct of the appellants’ attorney, but also by the failure of the presiding judges to adhere to the principles of South African jurisprudence that bound them. The unconscionable conduct of the judges consisted of illegally refusing to allow the advocate of Mrs Botha to present to the court vital evidence that was concealed from the court by the appellants’ attorney, evidence that would have exposed the fraud of the Appellant’s attorneys, and exonerated the Respondent’s attorney. The upshot of the fraud committed by the Appellant’s attorney, and the illegal refusal of the judges to allow and consider evidence that was tendered on behalf of the Respondent, was that the judges in the matter wrongfully and illegally made false and defamatory utterances that Respondent’s attorney;
• “obstructed the interest of justice”;
• “occasioned unnecessary costs to be incurred by all the parties to the appeal”; and
• “delayed the final determination of the action”.
As will appear from what follows herein, all of the quoted words, as contained in the judgement, flowed from figments of the imaginations of the learned judges and are not to the slightest extent based on true facts. To add insult to injury the court thereafter made a punitive order for costs against the Respondent’s attorney by ordering him to pay the costs of all six parties in the appeal matter (five Appellants, and the Respondent) on the attorney and client scale (nogal!). What makes the conduct of the judges just that mush more draconian is that, had the judges indeed allowed all the germane evidence to be presented by Mrs Botha’s attorney (as they were legally obliged to do in terms of the rules of natural justice) then they would have been duty-bound not only not to order punitive costs against the Respondent’s attorney, but to;
• order such costs against the appellants’ attorney;
• refer the fraudulent conduct of the Appellant’s attorney to the prosecuting authority, and
• report the criminal conduct of the Appellants’ attorney to the Natal Law Society.
The judges that presided (ever so bizarrely) in the appeal matter were the late Kriek, and the late Didcott. The attorney that succeeded in fraudulently concealing from the court his criminal conduct, which included the crime of subornation of perjury, was one Johann Krog, then of Viljoen, Pienaar and Du Toit. And the hapless beleaguered attorney of the respondent was indeed I, the writer of this article. And given the fact that, at the time, the same unique illegal approach (to put it kindly) of the judges in the Botha case was also perpetrated in other Natal High Court cases in which I acted as an attorney, I decided that it would border on unprofessional conduct to continue practising as a litigating attorney, whilst judges of the Natal Court failed to respect and adhere to even the most basic rules of natural justice.
And so there came a time that I realised that I need to rid myself of the injustices to which my clients and I have been exposed in the Natal Superior courts and I eventually decided to stop practising as an attorney. I subsequently embarked on various business ventures and I can only describe what then followed as an adventure. Some of the exciting things that I inter alia became involved in are the following:
• I rendered services as ad hoc legal adviser to numerous businesses, which includes one of the largest corporations in South Africa.
• I designed and two prototypes of a sophisticated motor vehicle.
• As a scientist I did research (and produced a comprehensive report for a medical doctor (Dr Gunn) on a range of natural products that he was promoting for combating AIDS.
• As an experienced fighter and transport pilot I wrote a considerable number of article for an aviation magazine, and during that time saved the managing editor of the publisher and the managing director of the producer from a sexual harassment complaint by demolishing (during cross-examination) the desire of the complaint – was duly represented at the proceedings by an attorney - to continue with her complaints.
• I have had a total of more than 60 items published (which does not include my letters to newspapers that were published) and I was inter alia commissioned to produce promotional material for the South African Air Force museum, Nasua, and Rand Airport (which happens to be the base of the first fighter squadron on which I served as a combat pilot.
The type of illegal mischief of Kriek and Didcott perpetrated against me in the Botha case was also committed against me in other Natal superior court cases in which I represented clients, thereby causing me to be defamed and wrongfully ordered to pay costs on the attorney and client scale. And, as was the case with the Botha case, I was not afforded an opportunity to present my side (and that of my clients) in the matters. So, in all those mentioned matters “one of the most basic and important rules of natural justice” as “encapsulated in the well-known maxim, audi alteram partem”, (see “Introduction to South African Law and Legal Theory” by Hosten and others) were not available to me and my clients in all the Natal court cases to which I have made reference.
That having been said, I will now continue my discussion of the unique characteristics (to put it euphemistically) of the proceedings in the Botha case.
Now the opening words of the bizarre judgement of Kriek and Didcott (that happens to have been reported in the South African law reports, reads as follows:
“It is a foregone conclusion - and has been ever since this appeal was noted. – that the appeal must succeed.”
Now can there be anything more bizarre in jurisprudence. A court (Judges Kriek and Didcot presiding) of a civilised Western (not Eastern-Block or obscure African country) states in a matter on appeal that ever since the appeal was noted it “It is a foregone conclusion…that the appeal must succeed”. Kriek’s quoted words (with which Didcott gleefully stated he agreed) obviously flies in the face of trite South African law, being that any judge presiding in any matter is under a legal obligation to adhere to the principles of natural justice, and more specifically the following principle: audi alteram partem (hear the other side). In that regard I mention that in “Introduction to South African Law and Legal Theory” by Hosten and others, the authors state that procedural irregularities leading to injustices are various, and in that regard inter alia mention a failure to adhere to the principle of natural justice (such as the audi alteram partem rule) as an example of injustice. The mentioned authors also state that the rule that a party should be afforded an opportunity to present his own side of the matter is “one of the most basic and important rules of natural justice and is encapsulated in the well-known maxim, audi alteram partem” and that the principles underlying many of the functional rules of procedure are founded upon the audi alteram partem maxim.
So, the fact that Kriek boldly stated in the opening words of the judgement that, “It is a foregone conclusion - and has been ever since this appeal was noted. – that the appeal must succeed.”, is clearly a “procedural irregularities leading to injustices”. And my client and I were on the receiving end of the particular injustice flowing from the Judges’s “procedural irregularities”.
But a moment’s reflection would give some perspective on the truly bizarre nature of goings-on in Kriek and Dicott’s court on the particular occasion. Any court of law that deals with a particular matter should establish all the facts and the law germane to the matter, listen to the arguments of all the parties to the proceedings, and only thereafter decide on the matter. There simply is no place in the jurisprudence of a civilized society for a court to decide on the merits of an appeal before dealing with it properly in open court where all the relevant facts are considered and the parties are given a proper and unbiased audience. That clearly did not happen in the Botha case because, according to Kriek (with Didcott concurring), after they had read the record that was to be dealt with before them, they decided that;
“It is a foregone conclusion - and has been ever since this appeal was noted. – that the appeal must succeed.”
The irony contained in the bizarre words is actually quite profound in that what the judges actually stated was that before the record of the proceeding pertaining to the appeal had been prepared, and even before the matter was enrolled for argument, was it already “a foregone conclusion” “that the appeal must succeed”. The particular “a foregone conclusion” actually mysteriously arose, according to the learned judges, when the “appeal was noted” - that is before the matter was even enrolled for hearing.
Rough justice indeed!
I will in due course revisit the issue of the strangeness (I am being excessively kind) of the legal proceedings (I am once again kind) in the Botha case.
The bizarre facts pertaining to this matter.
In order to give perspective on just how the Natal Superior Court Justice system failed my client in the Botha case, I will now relate the bizarre facts of the matter. Facts that not only caused me to be punished with illegal slander, and costs, but that also wrongfully caused the demise of my client’s case. The following are the facts germane to the Botha case. Some of the facts that I will now record and that incriminate the learned lordships, attorney Krog, and his clients, and exonerates both my client, and me, were (with the kind cooperation of the learned judges) never allowed to see the light of day during the Botha case). For ease of reference I will number the factual issues.
1. I issued summons against the five Appellant’s after my client, a married woman, at the time, was defamed by one of the defendants and viciously assaulted by all five Appellants.
During he assault she sustained injuries to an arm, leg, shoulder blade, eye and her head. The Appellants pleaded to her claims by denying the allegations in the summons, and in due course the matter was to go to trial.
2. I must now explain that when a civil court matter has progressed to the stage where it will soon go to trial, each party may call upon the opponent to disclose the documentary evidence relevant to the case that he has in his possession or under his control. The procedure is referred to as “Discovery of Documents”.
Although the rules pertaining to discovery in the Magistrates’ Courts differ slightly from that in the High Courts, the object of the rules of discovery are the same in both forums, being to ensure that before trial both parties are made aware of all the documentary evidence that is available in the matter.
In a magistrates’ court matter a party who has been called upon, in terms of rule 23(1), to discover documents, must furnish a schedule, specifying the books and documents in his possession or under his control, which relate to the action and which he intends to use in the action, or which tend to prove or disprove either party’s case. He must in effect declare under oath to his opponent that the documents listed in the schedule are the documents that he is obliged to discover. A litigating party is therefore obliged, not only to declare to his opponent the documents in his possession or under his control that tend to prove or disproves his case, but also the documents under his control that tend to prove or disprove his opponent’s case. And that only happens in cloud-nine-la-la-cuckoo-land. What happens in the real world is that it often transpires during the trial that a party, with the kind and expensive cooperation of his attorney, has failed to disclose a document that the party (and his attorney) is obliged by law to discover. And given the fact that he had previously falsely stated that he had discovered all the documents that he is obliged by law to discover, he had in fact committed perjury in his discovery affidavit. And his attorney is guilty of committing the crime of subornation of perjury, which carries the same penalties as the crime of perjury.
But all of that type of criminal conduct by parties and their attorney are always perpetrated with impunity. I have yet to hear of a case in South Africa where criminal action has been is taken due to perjury committed during discovery of documents. The fact of the matter is that that type of perjury (and subornation of perjury) is committed, even as I pen these words.
3. On 13 December 1978 I served a notice in terms of rule 23(1), in which I called for discovery of documents, on the appellants’ attorneys. The appellants’ attorney served a similar notice on me on 19 December 1978, to which I reacted by drafting a discovery affidavit for my client, which she signed on 15 January 1979, and which I subsequently served on the appellants’ attorneys.
The appellants’ attorneys did however not respond to my notice calling for discovery and exactly two months after I had called upon the appellants to discover documents, I applied for, and obtained an order in terms of rule 60(2) compelling the appellants to comply, within seven days, with my notice to discover. My application was heard on 12 February 1978 and the order was granted. Krog, acting for the appellants informed me that he had considerable difficulties in procuring discovery affidavits from his clients and at his request, and as a kind gesture to a colleague, I consented to an order in terms of which he would be allowed until 19 March 1978 to comply with the order. Krog therefore had more than 35 days to comply with the order that I obtained against his clients. As would appear form what follows later herein, Krog never complied with the order and not only did he skilfully and dishonestly concealed that fact from judges Kriek and Didcott, but he also allowed them to remain under the misunderstanding that he was blameless in the matter and that I acted wrongfully..
4. What then followed is particularly wacky.
On 5 March 1979 Krog served discovery affidavits of all the five appellants on me, but thereafter proceeded with an application to court for an order to extend the time limit within which the appellants are obliged to deliver the discovery affidavits (that he had already delivered). Krog set the application down for hearing on 13 March 1978.
5. Now how weird is that? Let’s reconsider the relevant facts.
• I requested discovery on 13 December 1978.
• Although, at the time, the rule stipulated that the request needs to be complied with within 7 days of the delivery of my notice, two months later, Krog had not yet delivered discovery affidavits of his clients. I therefore launched an application for a court order compelling discovery within seven days. At the request of Krog I gratuitously agreed that the court makes an order in terms of which Krog has more than a month, that is, until 19 March 1979 to comply with the order.
• Thereafter, and within that period (ending on 19 March 1979), Krog ostensibly complied with the court order by delivering his clients’ discovery affidavits.
• Despite the fact that he had already delivered his clients’; discovery affidavits, and despite the fact that the time within which he was obliged (by an order of court) to deliver discovery affidavits, had not yet expired, he launched an application to court for an order extending the time limit within which he needs to deliver the discovery affidavits (being the affidavits that he had already delivered).
• He enrolled the application for hearing on 13 March 1979, which is a week before the date on which he had to comply with the order to deliver the discovery affidavits (which he had already delivered).
But lo, none of these eccentricities bothered Kriek and Didcott to the slightest extent, or sparked any questions in their minds. Surely the learned lordships should have realized that for Krog’s perplexing behaviour in applying for an extension of a time limit to comply with an order, with which he had already complied, is that he conceded that, despite the fact that he had delivered discovery affidavits of all his clients, he had in effect not complied with the order because the affidavits that he had delivered are defective. But they did not even bother to ask him about his wacky behaviour.
Krog’s actually explained to me his baffling behaviour in applying for an extension of a time limit to comply with an order, with which he had already complied. He did so on the morning before we argued his application for extension of the time limit. And what he told me is also in effect what he told the court during the hearing of the application for an extension of the time limit.
6. Krog’s application for extension of a time limit was, however, fraught with defects, some of which are the following:
• In the first place Krog was only entitled to launch the application in terms of rules 60(5)(b) for extension of a time limit after he had requested me, in terms of rule 60(5)(a) to consent to an extension of the relevant time limit, and I had refused to do so. In that regard he never even addressed any request to extend the time limit to me.
• Secondly, it is clear from legal authority (The Civil Practice of the Magistrates’ Courts in South Africa by Jones and Buckle) that Krog was (on behalf of his clients);
“required at least to furnish an explanation for the delay”.
He did not do that.
• He failed to give the required period of notice as prescribed by the rule, and the matter had to be adjourned to 15 March 1979.
7. I need to mention that the discovery affidavits that Krog delivered are horribly disjointed and riddled with defects. However, I informed him that I am prepared to accept the affidavits as constituting proper discovery. My reason for doing so is discussed in detail in the paragraph entitled; “The reason why I accepted disjointed discovery affidavits of the appellants as sufficient discovery”
Just before Krog’s application for an extension of a time limit was heard on 13 March 1979, I once more informed him that, despite the disjointed nature of the affidavits, I find the affidavits in order, and I suggested that he withdraws the application and tenders the costs of the application. He responded, in a somewhat cagey manner, that he had other problems with the affidavits, but I perceived a distinct reticence on his part and it was clear that he did not want to tell what is wrong with the affidavits.
The matter was subsequently argued before court and during the argument Krog himself pointed out to the court the defects in the affidavits and informed the court that he (Krog) had to draft his clients’ affidavits with extreme haste; that he could not procure proper instructions from his clients; and that he merely included in the affidavits the documents that he personally had in his possession. The court was therefore in effect informed that that the affidavits are perjurious.
But Krog also told the court during argument in the application for an extension that the time limit that female, although married in community of property, Appellants were not duly assisted by their husbands when they deposed to the discovery affidavits. When I addressed the court I placed, ever so clearly on record that I have informed Krog, before the matter was called, that I find the affidavits of the Appellants in order. But I then made the mistake of saying that, despite the fact that Krog was of the opinion that the female Appellants were not duly represented, more than a month later he had still not corrected, what he perceives as a defect in the affidavits. I therefore urged the magistrate not to exercise his discretion in favour of the Appellants and afford them a further extension of time. This the magistrate interpreted as an argument concerning the defects of the affidavits and that is what he stated in his reasons for judgement. On the record before them the judges therefore had reason to believe that I raised the point of a lack of assistance of the female Appellants when they deposed to their affidavits. But, Krog knew better and should have informed the judges of the true facts. But he chose to commit fraud by remaining silent.
The Fact that, on the record before judges Kriek and Didcott, they had reason to believe that I raised the point of a lack of assistance of the female Appellants when they deposed to their affidavits, not exonerate the learned lordship regarding their horrific blunders regarding other issues pertaining to the very same affidavits.
The court was however not informed, and never asked why, if Krog was in any event able to hand to his clients the affidavits for signature, he could not at that juncture take proper instructions from his clients on the issue of discovery, and draft proper discovery affidavits.
8. Apart from the fact that Krog made it clear to me, and also to the court, that the affidavits that he drafted for his clients were done in haste and were not complete, I thereafter established that some of the appellants had laid criminal charges against my client pursuant to the fracas during which my client was injured, and that they were in possession of copies of the statements that they made to the police. Since any statements that were made to the police by any of the appellants regarding the brawl that left my client injured, are documents;
“which relate to the action and which” an appellant “intends to use in the action, or which tend to prove or disprove either party’s case;
such statements most certainly should have been discovered in terms of rule 23(1). The affidavits were therefore blatantly false and perjurious and Krog participated in the criminal act.
9. The application for an extension of the time limit was subsequently argued and dismissed, with Krog’s clients being ordered to pay the cost of the application on the higher attorney and client scale, and with a further order that the costs would include a fee for preparation of argument. Those costs were never paid by the Appellants. Due to the fact that my client (and her spouse) lost complete faith in the legal system of South Africa as result of the conduct of Judges they were not prepared to participate any further in the preoceedings.
What is particularly important is that after Krok’s application for an extension of time for delivering discovery affidavits of his clients had been dismissed, Krog did nothing further to comply with the appellants’ obligations to discover properly in terms of rule 23(1). That never bothered Judges Kriek and Didcott to the slightest extent! They never enquired as to why, after Krog had delivered his clients’ discovery affidavits that Kriek and Didcott found in their judgement not to contain “any blemishes” and “were not in fact defective in any way...”, he still applied for an extension of the time limit to deliver discovery affidavits that he had already delivered. They never even dealt with the important application for an extension of the time limit (the record of which Krog fraudulently left out of the record that served before the judges). The judgement of Kriek and Didcott makes no mention whatsoever of this vitally important application. Not one word! Nothing! Nada! Zultz! Sweetall. Blowall.
Now you don’t need a law degree to see that it was not in Krog’s interest to include the record of the application for an extension of the time limit in the record on which the appeal was argued, albeit that the supreme court rule 50(7)(a) stipulate that he “shall ... lodge” with the registrar of the supreme court two copies of the record. In terms of rule 50(7)(c) the record “shall contain a correct and complete copy of the pleadings , evidence and other all other documents necessary for the hearing of the appeal.”
But sadly so, for the two judges, Kriek and Didcott, Krog’s fraudulent concealment of document that should have sent his clients’ cases down the toilet does not exonerate them because they in any event had before them “the record in the action duly certified” and if they were at all interested in the truth, then Krog’s fraudulent concealment of facts would not have worked.
The reason why judges Kriek and Didcott had a “duly certified record of the action” before them
toilet does not exonerate them because they in enay event a “The clerk of the court shall, within 14 days after he receives notice that an appeal has been set down for hearing, transmit to the registrar of the court the record in the action duly certified.”
I need to stress the fact that the previously mentioned written criminal complaints of the Appellants against my client (that may have incriminated some, or all of them) and any other documents that Krog did not discover in his clients’ discovery affidavits, therefore remained concealed until the appeal in the matter was heard, and with the kind cooperation (wittingly or unwitting so) of judges Kriek and Didcott, that deplorable situation remained unaltered after the devastating and appalling judgement in the appeal matter was handed down by the learned lordships.
$. At this juncture I wish to stress the fact that Krog is my star witness concerning my contention that when the appeal was heard, there still was no proper discovery by Krog (on behalf of the Appellants). After all, his application to have the time limit for delivering his clients’ discovery affidavits extended after he had already delivered their discovery affidavits, is a clear concession on his part that his clients (the Appellants) had not yet discovered in terms of rule 23(1). And of that fact there was clear evidence in the record of the magistrates’ court proceeding, from which the appeal originated. But, as I previously mentioned, the learned judges Kriek and Didcott did not deal with that issue. Hell, they did not even make any mention of it.
$ Krog application for extension of the time limit within which he could deliver discovery affidavits was dismissed on 15 March 1979, and when he thereafter did nothing further to deliver discovery affidavits in compliance with the court order of 12 February 1979 (that compelled his clients to do so), I launched an application in terms of rule 60(3) for judgement against the Appellants due to the failure to comply with the order of court of 12 February 1979. I gave notice that the application would be heard on 9 April 1979 and served the notice of the application on Krog on 21 March 1979. And yet, from that day until the day on which the application for judgement was heard, Krog still did nothing to comply with the order of court granted, more than a month earlier, on 12 February 1979. In that regard I must share with the reader a humorous titbit contained in the notice of appeal that Krog served on me after judgement was granted against his clients. Krog actually had the audacity to deliver a notice of appeal that inter alai states the following:
“The Learned Magistrate erred in not exercising his discretion and granting the Defendants an extension of time to file new affidavits in terms of rule 60(3)”
Now that is rather precious, for the following reasons:
(a) Why “new affidavits”? What was wrong with the old ones?
(b) Examining the following sequence of events reveals a lot about the ethical standards, reliability, and competence of the Krog fellow:
(i) On 13 Desember 1978 I served a notice on Krog in which I called on him to discover in terms of the in rule 23(1).
(ii) At that time Krog was obliged, in terms of rule 23(1) to respond to my rule 23(1) notice within 7 days.
(iii) On 12 February 1979 the court made an order compelling Krog’s clients to deliver discover affidavits.
(ii) They did not do so.
(iii) On 21 March 1979 I gave notice to Krog that on 4 April 1979 I am going to apply to court for judgement against his client due to their failure to comply with the court order of 12 February 1979 that compels delivery of discovery affidavits.
(iv) Krog still did not deliver discovery affidavits, or do anything to protect his clients’ interests.
(v) On 4 April 1979 the court therefore quite rightly grants judgement against Krog’s clients.
(vi) And after judgement is granted against the Appellants due to Krog’s gross negligence and incompetence, he claims that the magistrate played the him foul by, “not exercising his discretion and granting the Defendants an extension of time to file new affidavits”
(vii) So after having been called upon to discover properly (in early December of the previous year) and being obliged to do so within 7 days, and having still not done so 117 days later, Krog had the cheek to contend that the magistrate made this big mistake of not affording him an “extension of time to file new affidavits”.
And Judges Kriek and Didcott were happy, nay, delighted with Krog’s poppycock!
