Nel v Oudtshoorn: Battle lines are drawn

Who will pay the enormous legal bill!?

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Drewan Baird. Oudtshoorn. 9 April 2013. 11h15. The Justice and Equality Front (JEF) has published an intriguing account of the matter of the legal costs in the Nel v Oudtshoorn Municipality case:

The legal costs in the matter between Pierre Nel and Oudtshoorn Municipality is expected to run into several millions.

The applicant, Pierre Nel, is responsible for the costs and a local newspaper, Die Hoorn, quoted the Executive Mayor, Gordon April, on April 4 that the municipality will start the process to recover the costs as determined by the Supreme Court of Appeal on March 28 when Justices Mpati, Nugent, Pillay, Schoeman, and Mbha dismissed Nel’s appeal with costs including the costs of two counsel.

In reading the June 7, 2011 High Court verdict of Mr Justice Nathan Erasmus, appealed by Nel, the judge’s discontent with the manner in which the matter developed is evident.

I quote verbatim from the verdict:

There is, however, a further disturbing aspect in this matter and this concerns the conduct of the applicant’s attorney of record, Mr Nick Barrow. Mr Barrow entered the fray as the attorney of record only on 4 February 2011. As I have pointed out, long before he became the attorney, and before he was mentioned on any of the papers, he signed a so called confirmatory affidavit. I could not see the relevance thereof at that stage, but until all the other papers were filed, it became very clear, as I have indicated, that he was the driving force behind this issue that resulted in this application.

It is unfortunate that he came on record as an attorney, given that the answering affidavits of the second respondent contains a number of serious allegations regarding his conduct which, if correct, made it improper for him to act as an attorney of record in this matter. There are numerous indications in the record which support this contention and I wish to state at this stage at the time when I asked counsel for further input, I had exactly the same issues as quoted by the first respondent’s counsel in mind and I had flagged in my record and I think it is appropriate that one quotes it here. Firstly, in a handwritten note directed at the second respondent, Mr Barrow is alleged to have stated:

“Jou dom donner, die planne moes en is deur die vorige eienaar ingedien. Gaan kyk in julle deurmekaar kantore.”

In the letter dated 21 September 2007 to the editor of the Oudtshoorn Courant (they use the Dutch word), Mr Barrow is alleged to have stated the following with regard to the second respondent:

“Jou kontrak is nie hernu bloot omdat jy totaal onbevoegd is. ʼn Voëltjie het toe vir my gesê jy is maande agterstallig met paaiemente op jou rekening by die bank en dat hulle die voertuig soek om terug te neem.”

And:

“Twee mense het ook aan my gesê dat jy lief is vir dobbel en casinos toe gaan. Ek sê toe nee dit kan nie waar wees nie, die man dra dan ʼn toga. Jy sal dit seker maar ontken.”

Then a week later, again to the editor of the newspaper, he wrote:

“Maar vader Petersen, wat het jy dan daar gedoen as jy so ʼn gemors daar aangevang het, wat gaan jy hier doen?”

And he persisted with this in the media and in direct correspondence with the second respondent. Then later on 16 April he wrote to the audit committee:

“Die mense is keelvol vir sy bullshit.”

He did not stop there, he goes to the newspapers again and eventually in October 2008 he draws up what he calls a scoreboard of all the points that he scored. Then, of course, we know, as I have summarised earlier on of what happened in the council as a result of payment of legal fees relating to some of these allegations and then Mr Barrow comes on record as the attorney, whereas the serious allegations in the papers are not being dealt with.

It is clear from the founding papers, and more particularly the supporting affidavit of Mr Barrow, that he and the applicant were under one roof with the launching of this application. I am, however, not going to make an order against the attorney himself, but I think it is appropriate in a case like this, that the court shows its displeasure in the way this litigation was conducted and, therefore, the following order is made:

The application is dismissed with costs, which costs shall be on the attorney and client scale and shall include the cost of two counsel and the costs of the appearances on 19 August 2010 and 1 September 2010.

That is the order of the court.

It is a well known fact that the DA was the force behind the case and that Nel simply stepped up to the plate in answer to a request from his political masters.

The fact that the DA Fedex Chair, James Selfe, gave written consent to proceed and an undertaking to fund the case is proof sufficient for this state of affairs.

It is also a well known fact that the DA grew cold over time and that the last DA payment, R50,000 paid on September 10, 2012, after months of haggling and threats by Barrow to withdraw as attorney of record, was made only because Barrow and his supporters brought enormous pressure to bear on Theuns Botha, who ultimately saw to the contribution.

It is inconceivable that his masters and his exploiters will stand by while the Oudtshoorn Municipality ruins Nel.

Or is it?

Given the findings of Erasmus J on Barrow’s behaviour, JEF suggests that Nel looks to his attorney of record to foot the costs bill!

Think about it: Nel would (very highly probable) never have launched the legal procedure and certainly would not have appealed – first to the High Court for permission to approach the SCA, and then to the SCA – if he was not pressed by his masters and his exploiters to do so.

Barrow drove the appeal, and most probably only in an effort to have Erasmus J’s unfavourable references to his person and character vacated; and forced the DA’s hand to aid and abet his personal agenda.

It is only fair that Barrow, who ordered the pizza, should pay for the pizza.

O!O’s comment:

It is interesting to note that although Pierre Nel did meet with Theuns Botha during the recent KKNK, no meeting between Botha and other role players in the court battle took place.

O!O hears say that the Nel camp is considering a Constitutional Court application, if in fact such an option is. Available, to have the SCA judgment set aside.

Such bold move will have further cost implications.

O!O’s Cape informants report dissent in DA ranks about the cost. Many DA functionaries are opposed to any further contribution in the light of the looming cost of the 2014 election campaign.

That Barrow was willing to invest both time and money in this matter speaks to his passion for clean local government.

O!O also holds that Barrow continued the fight because he firmly believed in the merits of the case.

Legal experts who commented on condition of anonymity told O!O that the SCA may have erred in its application of the promotion of administrative justice (PAJA). Even alarm at the finding was evident among these legal authorities.

This matter is certain to remain in the headlines for some time to come.

Published initially on JEF: Enormous Legal Costs in Oudtshoorn Political Battle

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4 thoughts on “Nel v Oudtshoorn: Battle lines are drawn

  1. Toe is DiHaan de Jager slimmer as wat jul gedink het! ‘hulle kan jou tog niks doen nie ou Noulie’. en daar wys DiHaan vir julle ‘n middelvinger. kan OO so n spotprentjie plaas?

  2. O!O is correct, this matter will remain in the limelight for some time, but unfortunately for all the wrong reasons. I cannot fathom how this matter could be considered a constitutional matter, so my layman’s opinion would be that the Constitutional Court will not entertain it.

    Perhaps it is time that the DA (for once) just accept the fact that they have messed up. Big time. And pay up, so that the taxpayers won’t have to.

    As to the committment of Mr. Barrow, one cannot doubt O!O’s belief, BUT one can (from the judge’s findings) certainly conclude that his motives and modus operandi is completely irregular and unethical.

    My grandpa used to say that if you cheat in order to win, you may get first prize, but you will always be a loser. If Mr. Barrow must sink to such levels when doing battle…

  3. Agnee Pletty los nou daai suur druiwe. Die feite in hierdie stuk is vanselfsprekend.

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