I was listening to some of my colleagues complain about the troubles we experience at one of our courts when I realised that we, the previous generation of attorneys actually owe an apology to the new generation of attorneys that have joined this profession about two years ago.
You see- long ago we have entered into the profession, gone to court and found the Registrars, Clerks of the Court, Magistrates, Judges and all these other officers of the Court, Police and other sectors of the public service as unhelpful and full of nonsense as you have found them, but we have not done anything about it.
Why did we not appeal against decisions, obtain mandamus orders to compel unhelpful officials to do their work on pain of criminal prosecution or sue for damages? Well... We thought that we have managed to reach a truce that we thought beneficial to ourselves and our clients.
We tolerate their bending the rules as long as nobody got hurt. We did not make too much noise and in return we were not singled out and given a harder time at court for making their lives uncomfortable.
We thought it would work.
Instead- you, the recently admitted attorneys of this generation have inherited courts with officers thinking that they have your bosses under control so they need not show you any fear or respect.
One of the perks of being a sole practitioner with right of appearance in the High Court is that I have some degree of freedom to manage my time without a boss surprising me with work that could get in the way of other rewarding enterprises. One such rewarding enterprise for me is getting public servants and officers of the court in line.
Why would I spend the extra time on doing this? Well- a simple reason, not the only one, but nonetheless significant, is that not getting assisted by the court in the manner which we expect to be assisted is bad for business. Clients see us not managing to get relief and they lose faith in us. We lose the clients. That is not where it stops, however...
Clients lose faith in the legal process and this is what ensues...
Admit it- you know what these people would tell you if you suggested that they'd rather approach the court with their grievances, don't you?
I have recently brought an urgent application. The third one in my entire life.
Why not more? Well- most of the time cases brought to me do not really have the grounds for the urgent procedures to be used. What did have those grounds with me at the times of these applications were:
1. The police having unlawfully arrested somebody and detaining the applicant without any charges;
2. A mother that was going to relocate with a child 3 days from when the news reached a concerned father;
3. A tracing agent that was going to forcefully take an applicant's vehicle at 20h00 that night while an application for suspension of the judgment was still pending.
In the first instance the Judge saw nothing wrong with being wrongfully detained for 24 hours.
In the second the Judge was more concerned with indexing and paginating than with the impact of her decisions on the parties.
In the third- The judge thought it a good idea to hear the application only the next day.
The third, and most recent, instance is where I have realised anew how cynical this line of work an make us. Before I was allowed to speak to a Judge and get the opportunity to do whatever I can to get his assistance I first had to deal with a Judge's clerk who had already judged the case before I have even begun to speak.
I had to hear that my client had it coming and that they can't give urgent assistance to everyone who was to have their vehicles repossessed. At least- when I have eventually convinced her to let me speak to the Judge I had to face this brand of cynicism anew.
Well- the fact that my client still has his car had nothing to do with the Judge's assistance the next day. It had a lot more to do that the bank has honourable and ethical attorneys who have assured me that the application was not necessary. The tracing agent's conduct ended up not being sanctioned by the bank.
Well... we were lucky there...
Afterwards I had to her from my Counsel that the Judge said that there would in any event have had to be "blood on the walls" for him to have entertained the matter. I just said- I am sorry, but if a threat of prejudice that was to follow at 20h00 that very same night is not urgent enough for him I deem myself unable to satisfy that particular Judge then.
Let's view all this from a different angle now:
We know the Courts and the State have no competition. Their employees get paid a full salary with benefits and in many cases allowance for travelling and housing- all just for showing up at work. Refusing to help a seemingly insignificant attorney will not threaten this cushy job with all its perks, right...?
Well... maybe... as long as nobody gets hurt.
You see- what we tend to forget is that here in South Africa nobody is above the law and anybody who suffers damages because you, whoever you may be, have not done your job, has a right to sue you for those damages.
And me...? Well, I am still unknown to most court officials in this country and I none of the ones I know deem it necessary to have any kind of truce or treaty with me- I will definitely not hesitate to sue any court official for damages that he or she may cause my client to suffer.
That is really something a court official or public servant has to think about before he or she just shows you away...
You see- long ago we have entered into the profession, gone to court and found the Registrars, Clerks of the Court, Magistrates, Judges and all these other officers of the Court, Police and other sectors of the public service as unhelpful and full of nonsense as you have found them, but we have not done anything about it.
Why did we not appeal against decisions, obtain mandamus orders to compel unhelpful officials to do their work on pain of criminal prosecution or sue for damages? Well... We thought that we have managed to reach a truce that we thought beneficial to ourselves and our clients.
We tolerate their bending the rules as long as nobody got hurt. We did not make too much noise and in return we were not singled out and given a harder time at court for making their lives uncomfortable.
We thought it would work.
Instead- you, the recently admitted attorneys of this generation have inherited courts with officers thinking that they have your bosses under control so they need not show you any fear or respect.
One of the perks of being a sole practitioner with right of appearance in the High Court is that I have some degree of freedom to manage my time without a boss surprising me with work that could get in the way of other rewarding enterprises. One such rewarding enterprise for me is getting public servants and officers of the court in line.
Why would I spend the extra time on doing this? Well- a simple reason, not the only one, but nonetheless significant, is that not getting assisted by the court in the manner which we expect to be assisted is bad for business. Clients see us not managing to get relief and they lose faith in us. We lose the clients. That is not where it stops, however...
Clients lose faith in the legal process and this is what ensues...
Admit it- you know what these people would tell you if you suggested that they'd rather approach the court with their grievances, don't you?
I have recently brought an urgent application. The third one in my entire life.
Why not more? Well- most of the time cases brought to me do not really have the grounds for the urgent procedures to be used. What did have those grounds with me at the times of these applications were:
1. The police having unlawfully arrested somebody and detaining the applicant without any charges;
2. A mother that was going to relocate with a child 3 days from when the news reached a concerned father;
3. A tracing agent that was going to forcefully take an applicant's vehicle at 20h00 that night while an application for suspension of the judgment was still pending.
In the first instance the Judge saw nothing wrong with being wrongfully detained for 24 hours.
In the second the Judge was more concerned with indexing and paginating than with the impact of her decisions on the parties.
In the third- The judge thought it a good idea to hear the application only the next day.
The third, and most recent, instance is where I have realised anew how cynical this line of work an make us. Before I was allowed to speak to a Judge and get the opportunity to do whatever I can to get his assistance I first had to deal with a Judge's clerk who had already judged the case before I have even begun to speak.
I had to hear that my client had it coming and that they can't give urgent assistance to everyone who was to have their vehicles repossessed. At least- when I have eventually convinced her to let me speak to the Judge I had to face this brand of cynicism anew.
Well- the fact that my client still has his car had nothing to do with the Judge's assistance the next day. It had a lot more to do that the bank has honourable and ethical attorneys who have assured me that the application was not necessary. The tracing agent's conduct ended up not being sanctioned by the bank.
Well... we were lucky there...
Afterwards I had to her from my Counsel that the Judge said that there would in any event have had to be "blood on the walls" for him to have entertained the matter. I just said- I am sorry, but if a threat of prejudice that was to follow at 20h00 that very same night is not urgent enough for him I deem myself unable to satisfy that particular Judge then.
Let's view all this from a different angle now:
We know the Courts and the State have no competition. Their employees get paid a full salary with benefits and in many cases allowance for travelling and housing- all just for showing up at work. Refusing to help a seemingly insignificant attorney will not threaten this cushy job with all its perks, right...?
Well... maybe... as long as nobody gets hurt.
You see- what we tend to forget is that here in South Africa nobody is above the law and anybody who suffers damages because you, whoever you may be, have not done your job, has a right to sue you for those damages.
And me...? Well, I am still unknown to most court officials in this country and I none of the ones I know deem it necessary to have any kind of truce or treaty with me- I will definitely not hesitate to sue any court official for damages that he or she may cause my client to suffer.
That is really something a court official or public servant has to think about before he or she just shows you away...
