Judge Brian Spilg did not hide his annoyance with the Passenger Rail Agency of South Africa (Prasa) and its legal representatives when he ruled that the transport utility must pay Mbita Consulting Services just under R1million.
The ruling, published on Tuesday, said that despite its assurance that it would, Prasa had not provided the Gauteng High Court with proof that it had already paid Mbita for cleaning over several train stations between November 2012 to July 2017.
A further R15.5million, plus 10% interest has been suspended pending the final outcome of a rescission of judgment application.
Judgment was made on July 23 but Spilg held off on executing the judgement, pending proof that Prasa had paid Mbita.
But instead, the court received a letter from Prasa representatives Msikinya Attorneys, written by Advocate Lehlohonolo Peter Adonisi, saying: “We are not able to provide the court with the requested documentation. The applicant’s indebtedness as well as the amount, are in dispute as it is tied up with the amounts paid as indicated in the rescission application.”
Spilg said this did not make sense.
“The last cited extract from the letter is a non-sequitur.”
He goes on to say: “To make such a statement and claim that the court should be content to accept the very submission that I made plain a few days earlier was inadequate without further proof is of grave concern.”
Spilg said the court tried to hep Prasa “…by giving it a final opportunity to produce proof.”
Instead, it appears as if Prasa decided “it would not demonstrate proof of payment, as every other litigant who opposes a claim based on having paid is required to do.”
Spilg also made the point that he was not blind to how dragging out litigation can be used as a tool to delay justice. This wouldn’t happen in this case.
“Whereas litigation sometimes is a matter of one party blinking first, courts are not challenged in this way. Courts do not blink. They apply the law. The law is clear. If the defence is payment then it must be demonstrated.”
He also sharply criticised Msikinya Attorneys for its conduct. “Legal representatives should not make submissions in contested cases by way of letters addressed to a judge.”
“Whatever instructions a client may give, an attorney is expected to temper the manner in which he deals with them in conformity with his duty as an officer of the court.”
Aside from criticising Msikinya Attorneys and Adonisi, he also said the behaviour of Prasa’s interim CEO Nkosinathi Sishi and its head of legal matters, Fani Dingiswayo, showed they had little interest in resolving the matter.
This could be seen in Sishi and Dingiswayo not instructing Prasa’s legal representatives to be in court on July 23, despite their knowing that judgment would be made that day.
“The only explanation offered by Mr. Dingiswayo for not instructing Prasa’s attorneys to attend court on 23 July was because he believed that they had been served with the papers and, that being so, they would attend court and demonstrate that there had not been proper service.”
Judge Spilg said it appeared that only Dingiswayo was prompted to consult with his legal representatives, only after “the embarrassment” of a media enquiry on the matter, hours after judgment was made.
“There is no acceptable excuse for Prasa’s failure to contact its attorneys before the hearing when it obtained knowledge of the application. It cannot sit back and rely on a court to find some procedural flaw even if it existed.”
Legal costs were awarded against Prasa.