Court orders suspended Lotto secretary to pay punitive costs:
Suspended National Lotteries Commission (NLC) company secretary Nompumelelo Nene has been ordered to pay punitive costs in her failed urgent legal bid to halt disciplinary proceedings against her.
In March, Nene’s urgent application was struck from the roll by Johannesburg High Court Judge Stuart Wilson after finding it was without merit.
At that time, the judge ordered her attorneys to make submissions as to why they should not pay the costs personally and on a punitive scale.
But in his ruling, he has now put the blame for the hopeless application on Nene herself, saying as an admitted advocate and a senior corporate lawyer, she should have known better.
Read the judgment here
Nene was one of five key staff members placed on suspension in 2022 following a crackdown on corruption in the NLC.
On 5 March, she launched urgent High Court proceedings which came before Judge Wilson, claiming her dismissal was a foregone conclusion and should the hearing continue, she would be subjected to undue financial hardship and a dismissal on her record, meaning she would struggle to secure alternative employment.
She also claimed a number of violations to her constitutional rights.
She wanted her disciplinary hearing, set down for later in March, to be stayed.
But the NLC’s lawyers argued that the application was an ”abuse”, was not urgent, was meritless, poorly conceived, and its only real purpose was to delay the disciplinary hearing.
They argued that her lawyers had acted recklessly and should be punished with a personal, punitive cost order.
In his ruling on the cost issue on 22 April, Judge Wilson re-iterated that the urgent application was “so devoid of substance” that it warranted a punitive cost order.
“Urgent court is for truly urgent matters,” he said.
“Enrolling a matter on an urgent basis without so much as attempting to set out an urgent cause of action based on primary facts … is a waste of a court’s time.”
“The Deputy Judge President of this court has repeatedly warned that the abuse of the urgent roll is widespread and should be penalised. Ms Nene’s case is a good example of such abuse.”
He said the failure to set out “even the slenderest cause of action” raised questions about whether Nene was properly advised.
Her attorney, Amanda Vilakazi, had not even attended court.
When Nene appeared unwilling to allow her advocate to argue the case as he saw fit, he had withdrawn.
Judge Wilson said Vilakazi ought to have advised Nene of the “reality” that her case was bad.
The least Vilakazi should have done was to attend court.
It was for this reason that he ordered Vilakazi to file an affidavit setting out reasons why she should not personally pay the costs.
In her affidavit, Vilakazi said she had acted for Nene pro bono. She said Nene had drafted the papers herself. On the day of the hearing, she had been at a conference but was available on her phone and she had sent a candidate attorney to court.
Judge Wilson said while her conduct “fell short of the standard of conduct expected from a reasonable legal practitioner”, the NLC’s lawyers appeared to have some sympathy for the fact that she was acting pro bono and withdrew their request that she pay the costs personally.
“In my view, however, the fact that the litigation was undertaken pro bono does not in itself mitigate Ms Vilikazi’s conduct. Pro bono litigation generally demands more, not less, of legal practitioners.
“Litigants represented pro bono are generally less familiar with the legal process, less able to identify the facts relevant to their claim and more in need of sensitive counselling in order to develop and implement the options open to them.
“That said, Ms Nene is no ordinary pro bono litigant. She is an admitted advocate and a senior corporate lawyer. She drafted her own papers. She ought to have known that they failed to make out a case.
“She, more than most, ought to have known better.”
Judge Wilson said while the NLC lawyers were no longer seeking personal costs against the attorney, a punitive cost order was still necessary and Nene, who was an empowered litigant, ought to bear the consequences.
He ordered that Nene personally pay the costs of the urgent application on a punitive scale, including the NLC’s costs in engaging two advocates to argue the matter.
This article was first published by GroundUp.
Concourt to hear IEC’s appeal to MK party ruling:
The constitutional court will hear the appeal filed by the Electoral Commission of SA (IEC) against the Electoral Court ruling that Jacob Zuma qualified to be a parliamentary candidate for the uMkhonto weSizwe (MK) party in the May elections.
The court on Tuesday directed that answering affidavits be filed on or before Thursday.
The IEC approached the apex court on an urgent basis ten days ago.
In its founding affidavit, it said every argument that the former president’s fledgling party used to overturn a decision by the IEC that his criminal record disqualified him from becoming a member of parliament was spurious.
“On any of the arguments that were made before it, the electoral court is wrong in law,” the IEC said of the court’s decision, handed down just days earlier.
The order of the electoral court came as a surprise, as his record seemed to place him squarely within the ambit of section 47(1)(e) of the Constitution.
It bars anyone who has been sentenced to 12 or more months in prison without the option of a fine being barred from becoming a member of the National Assembly for five years.
The MK Party argued that the IEC exceeded its powers because only parliament could implement section 47(1)(e).
This not only went against the spirit of the law but pointed to a lapse in logic, the commission countered.
“The text, structure and purpose of section 47(1)(e) all point against that conclusion,” it said, adding that it was plain from the wider context of electoral legislation that a decision on eligibility must be made before the vote.
Leaving it to parliament, implied that it would happen after the elections.
“Several sections of the Electoral Act require the Electoral Commission to consider whether a candidate is eligible under section 47(1)(e) before the election, not after.”
The very purpose of section 47 was to determine whether a candidate was eligible to stand in an election, and it was nonsensical to allow a candidate to stand if that person would not be able to take up a seat in parliament.
If the appeal was not finalised before election day, 29 May, the IEC said there was a risk that “the erroneous finding of the electoral court will produce a disputed election outcome, because a person who is not qualified would have been allowed to contest, in breach of the constitution”.
The question of Zuma’s eligibility to stand or otherwise, “affects the decision that millions of voters will be asked to make at the ballot box”.
Lawyers for the MK Party made much of the fact that Zuma served barely two months in prison, because his sentence was remitted after his early release on medical parole was found unlawful.
But Advocate Tembeka Ngcukaitobi, for the IEC, said this argument conflates the sentence the constitutional court imposed with the time that Zuma served in jail. The latter was irrelevant.
“The remission would change how long Mr Zuma served, it would not change the sentence that was imposed.”
He stressed that the president did not have the power to rewrite a prison sentence, hence remission could never shorten the sentence imposed.
The IEC filed for leave to appeal without the benefit of the reasons for the electoral court’s decision, which it has yet to release. Only the order was handed down.
With the election looming, the IEC said, it could not wait before filing for appeal.
Zuma was sentenced for contempt of court for defying an order of the constitutional court to testify before the commission of inquiry into state capture, headed by Chief Justice Raymond Zondo.
The MK Party has said if the court agreed to hear the matter, it would demand Zondo’s recusal.
Tuesday’s directive was issued by the office of Deputy Chief Justice Mandisa Maya.
Top price predicted for long-lost Klimt portrait at Vienna auction:
A painting by symbolist icon Gustav Klimt that reappeared after nearly a century will be sold at auction in Vienna on Wednesday despite questions surrounding its provenance.
“Bildnis Fraeulein Lieser” (Portrait of Miss Lieser) was commissioned by a wealthy Jewish industrialist’s family and painted by Klimt in 1917 shortly before he died.
The unfinished portrait of a dark-haired woman was likely last seen at a Viennese exhibition in 1925. It reemerged this year when auction house im Kinsky announced its sale.
“No one expected that a painting of this importance, which had disappeared for 100 years, would resurface,” said im Kinsky expert Claudia Moerth-Gasse.
Portraits by the Austrian great rarely come onto the open market.
The auction house estimates its value at 30-50 million euros ($ 32-53 million), but Klimt works have sold for higher prices at recent auctions.
Last June, Klimt’s “Dame mit Faecher” (Lady with a Fan) was sold in London for £74 million ($ 94.3 million at the time), a European art auction record.
The highest price paid at auction in Austria is a work by Flemish painter Frans Francken II, which fetched seven million euros in 2010.
Helene, Annie or Margarethe?
Wednesday’s auction will begin at 1500 GMT. Besides “Portrait of Miss Lieser”, sketches by Klimt and works by his contemporaries such as Egon Schiele will be on sale.
Ahead of the auction, the well-preserved painting has been put on show in Vienna, but also in Switzerland, Germany, Britain and Hong Kong.
The unsigned painting shows a young woman adorned with a large cape richly decorated with flowers on a bright red background.
Mystery surrounds the identity of the model, who visited Klimt’s studio nine times for the portrait.
She is known to be from the Lieser family, a Jewish industrial dynasty.
She could be one of the two daughters, named Helene and Annie, of Henriette (Lilly) Lieser, an art patron. But the first catalogue dedicated to Klimt, dating from the 1960s, said it was Lieser’s niece, Margarethe.
Lilly Lieser remained in Vienna despite the Nazi takeover, was deported in 1942 and murdered in the Auschwitz internment camp in 1943.
Nazi trader?
Before her death, Lieser seems to have entrusted the painting to a member of her staff, Austrian daily Der Standard found based on correspondence in an Austrian museum.
It then turned up in the possession of a Nazi trader, whose daughter inherited it and who in turn left it to distant relatives after her death.
Im Kinsky, which specialises in restitution procedures, insists it has found no evidence that the work was stolen or unlawfully seized.
The back of the painting is “completely untouched” and has “no stamps, no stickers, nothing,” which would indicate it was seized or left Austria, according to the auction house.
Moreover, none of the Lieser descendants who survived the war claimed the painting.
Moerth-Gasser told AFP the current owners, who wish to remain anonymous, contacted im Kinsky two years ago for legal advice. Im Kinsky then informed the Lieser families, who are largely US-based.
Some travelled to see the painting, before signing an agreement with the owners, thus removing any obstacle to its sale.
Some experts have called for a more in-depth investigation of the work’s provenance, however.
“Several points should be questioned more critically, as the provenance of the picture has not yet been completely clarified,” Monika Mayer, head of archives at the Belvedere museum, which houses Klimt’s famous “Kiss”, was quoted as saying by Austria’s Profil magazine.
Moreover, the painting was not presented in the United States, for fear it could be held there, as has happened before with Austrian works under dispute.
Austrian museums have returned a number of Austrian art works to descendants of Jewish art collectors, including an American claimant who sought five Klimt masterpieces.
© Agence France-Presse
Submit and get free exposure here: Showcase Your Business | Advertise Your Special Offers.
