TSHEPISO TSHABALALA and MANYANE MANYANE
AFTER arguments were presented last week, the Gauteng High Court, Pretoria, is expected to rule on contempt of court against the ENSafrica director in the dispute resolution department, Senzo Mbatha.
This was after the high court reserved judgment to study the arguments presented before Judge Gcina Malindi on Thursday.
Transasia Minerals lodged the case after Mbatha, who represents Umsombumvu Coal against Transasia, ordered the Department of Mineral Resources and Energy (DMRE) to attend the court hearing and bring confidential documents of Transasia and its directors at a case held at Palm Ridge Court on April 20, 2023.
The information included books, papers, records, and documents and all correspondence, including electronic communication between Transasia and the DMRE.
Transasia was represented by advocate Tembeka Ngcukaitobi while senior counsel Azhar Bham argued for ENSafrica’s Mbatha.
Presenting his argument, Ngcukaitobi said Mbatha was guilty of contempt of court because he knew that the access to the documents he seeks is currently in dispute.
This was after Transasia approached the Supreme Court of Appeal (SCA) after Judge Anthony Millar did not grant it rescission to cancel Judge Nomonde Mngqibisa-Thusi’s order granting Umsobomvu confidential documents belonging to Transaia without citing them in court papers last year.
Ncgukaitobi said Mbatha and Hector Kunene, the owner of Umsobomvu, were aware that Judge Millar’s ruling was a subject of an appeal when they insisted that the DMRE provide them with confidential documents of Transasia.
He said the two acted in contempt of court and undermined the authority of the court.
“The terms of the order are clear, and Mr Kunene and Mr Mbatha knew that they did not have any right to access the documents they seek under that order. They acted with malice,” said Ngcukaitobi, adding that the fact that Judge Millar’s order was suspended cannot constitute a defence.
Ngcukaitobi added that Mbatha, as a senior and experienced attorney, failed to meet the standard of behaviour for attorneys with the manner in which he acted in this matter.
He said Mbatha advised the court against the DMRE where neither Transasia Minerals nor Transasia 444 were cited as parties.
“Yet both -- and to his knowledge -- had a protectable interest in respect of the documents which were the subject of the disclosure in terms of the order of Judge Mngibisa-Thusi. The application to compel the production of the documents was heard on June 28, 2022, before her Ladyship Mngqibisa-Thusi.
“It is apparent that no inquiry was made by the judge in relation to the reason why the respondents did not include one of the Transasia companies. The result was that an order was granted in default. This has been addressed lately by the order of Judge Millar which joins the applicants thereto,” said Ngcukaitobi.
He added: “Secondly, it is common cause that the applicants (Transasia) served the applications for leave to appeal on February 7, 2023. So by the time Mbatha wrote the letter on February 9 he knew that an application for leave to appeal had been served on him. Mr Mbatha, as an officer of the court, owes a duty to the court not to mislead. When he uses the term ‘petitioned’, Mr Mbatha intends to mislead and present a false picture.
“He is intentionally trying to obfuscate the fact that he was in possession of the leave to appeal papers and acted dishonesty as if he did not know.
“In fact, Mr Mbatha has potentially perjured himself and he will be criminally charged. As an officer of the court, he should have disclosed the full facts, which include his awareness of the served papers two days before he served the letter to the regional manager of the DMRE,” Ngcukaitobi said.
Ngcukaitobi said Mbatha’s failure to disclose that Transasia served him with the application for leave to appeal against Judge Millar’s order is inexcusable and serves further as evidence of contempt of court on his part, and the fact that he actuated by malice.
“Mr Mbatha has no excuse. He knew that the petition had been served on him. The fact that it had not been delivered at the SCA proves precisely why he was in contempt.
“If the documents had been delivered to him at that stage, as was his intention, the appeal would have become moot and academic. He would have obtained the goal of defeating the proper administration of justice.
“A related issue to this is that Mr Mbatha owed this court a separate duty of disclosure. That duty flows from the fact that as an officer of the court, he must take steps to ensure the proper administration of justice. That duty includes a duty to disclose the facts at his disposal, whether they support the client’s case or not.”
On the other hand, Bham argued that Mbatha was not in contempt of court. He said the civil order granted by Judge Millar does not regulate access to documents in the criminal proceedings.
“Therefore, Mr Mbatha’s conduct in causing the subpoena to be issued to obtain documents and information in the criminal proceedings cannot be seen as a breach of the confidentiality regime imposed by Judge Millar’s order.”
Bham added that even if the court were to find that Mbatha failed to comply with Judge Millar’s order, any non-compliance was plainly neither wilful nor mala fide.
“If Mr Mbatha failed to comply with Judge Millar’s order by issuing the subpoena in the course of proving professional services to the accused in the criminal trial (which is denied), he did not do so wilful and in bad faith,” said Bham.
However, Ngcukaitobi said Bham made a discussion on the suspended order instead of defending Mbatha’s action, which is proving that he was indeed in contempt of court.
Mbatha is also in trouble with the Legal Practice Council (LPC) after being called to appear before the committee in terms of the provisions of rule 40.2.3 and rule 40.2.4 of the Legal Practice Act for allegedly committing fraud and corruption.
This after he was accused of colluding with State attorney Aubrey Milford in producing a false notice to abide on behalf of the respondents, including the Police Minister and Mineral Resources Minister, during an application brought by Umsobomvu before the High Court in Pietermaritzburg.