‘Reckless, inept’ attorney and advocate ordered to pay clients’ legal costs themselves


The incompetence of East London advocate Thenjwe Sellem and attorney Fezile Tembile Dengana has seen them saddled with a heavy legal bill which ordinarily would be paid by their clients.

Sellem and Dengana’s “appalling recklessness and gross ineptitude” in botching their clients’ case, was “beyond the pale”, according to judge Thembekile Malusi in the high court in Bhisho.

Malusi was giving judgment on the costs that arose when the two lawyers, ostensibly acting on behalf of the members of the Alice Business Development Forum (ABDF), brought an urgent application to halt and review a R7.9m tender issued by Lovedale College for high-security fencing in 2020.

(T)he failed litigation was solely caused by the two lawyers’ “material departure from the standards and the responsibility of their profession”

The application against the Raymond Mhlaba local municipality, various ANC councillors and implementing agent Coega Development Corporation, was withdrawn during the hearing on the matter.

However, EL attorney André Schoombee, representing councillor Thozama Ngayo, and advocate Dalena Mostert, for the CDC, pressed their respective clients’ interests in holding Sellem and Dengana personally liable for the legal costs of the fraught application.

They criticised the poor standard of the legal papers drafted by Sellem, stating they were not to the standard expected of an officer of the court.

And Malusi agreed wholeheartedly, accepting that Sellem and Dengana had acted so recklessly, carelessly and irresponsibly that the two lawyers deserved the court’s censure.

He granted costs against Sellem and Dengana on a punitive scale to be paid de bonis propiis ­— from their own pockets.

Among their failings, according to Malusi, they served the court application on the various respondents via email, without obtaining the court’s permission to do so, and told those who received the legal papers to serve them on other respondents. The effect was that most of the respondents did not receive the application at all.

Only 40 of the ABDF’s 90 members participated in the litigation and there was no ABDF resolution authorising the litigation. It was not clear if the ABDF had a legal persona.

The papers were “a veritable mess”, incomplete, peppered with typographical errors, provided incorrect dates for respondents to respond or failed to advise the respondents of their obligations, and contained contradictory statements.

The judge said the application displayed the two lawyers’ “astonishing” and “gross… lack of care, incompetence and complacency”, suggesting they had not read the final papers. The effect of some of the errors, said the judge, was to sow confusion in the mind of the reader.

A “simple reading” of the final papers would have revealed the “basic and glaring” errors to any reasonable legal practitioner. They were “too numerous, obvious and incomprehensible to be missed even in an urgent application”.

In court, Sellem conceded the parlous state of the court documents, stating his clients’ papers were “fraught with typographical errors”.

He explained the lawyers worked under pressure due to the urgency of the matter, circumstances which Malusi said were par for the course for any legal representative and did not explain the messy papers.

Malusi said Sellem did not reject a claim that he had played the role of attorney in the preparation of the application, making it impossible to distinguish counsel from attorney in the hearing.

He said the failed litigation was solely caused by the two lawyers’ “material departure from the standards and the responsibility of their profession”.

Dengana declined on Sunday to comment on the costs order. Asked if he intended appealing the judge’s finding, he said: “I’m still going to think about that.”

…Sellem and Dengana had acted so recklessly, carelessly and irresponsibly that the two lawyers deserved the court’s censure

Sellem confirmed to the Dispatch a comment expressed in a Facebook post on Friday that, “unfortunately, I made a clerical error… by putting two different dates in a notice of motion”.

The judgment, he suggested, reflected a philosophical approach which may not be shared by other judges.

The judge had ignored the fact that papers were served following discussions with some of the respondents’ attorneys, and that respondents’ papers were also handed to him in court, contrary to the rules.

But Schoombee hit back, telling the Dispatch that while he had “great respect and understanding” for any legal counsel who must draft urgent applications under immense pressure, Sellem’s failings went a lot further than a “clerical error” over dates.

He was appalled and took umbrage at Sellem referring to him as acting like “a vulture on [a] carcass, when I was acting in the interest of my client”.



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