Baphalane Ba Ramokoka Community v The Minister of Agriculture and Land Affairs and Others

The plaintiff community instituted a restitution claim under the Restitution of Land Rights Act 22 of 1994 involving multiple farms, including farm Pylkop No 26 JQ owned by the Mphela family (76th defendant). The Mphela family had previously been forced to sell their farm Haakdoornbult in 1951 (a "black spot" removal) and used the proceeds to purchase Pylkop. The Mphela family successfully claimed restitution of Haakdoornbult in separate proceedings that went through the Land Claims Court, Supreme Court of Appeal, and Constitutional Court. No order was made concerning Pylkop in those proceedings. The plaintiff filed a reply to the 76th defendant's response containing scandalous allegations that the legal representatives of the 2nd-74th defendants had willfully breached ethical duties by failing to inform the courts in the Haakdoornbult matter about the plaintiff's competing claim to Pylkop, thereby misleading the courts and subverting justice. The reply was initially withdrawn after complaint but was re-filed with the offensive content reinstated, accompanied by a letter stating the plaintiff stood by every word. Four interlocutory applications were brought: (1) by the 76th defendant to strike out the reply as an irregular step filed out of time; (2) by the 2nd-74th defendants to strike out offensive paragraphs; (3) by the plaintiff for condonation of late filing; and (4) by the plaintiff for postponement of the trial and strike-out applications.

• Whether paragraphs containing scandalous, vexatious and irrelevant allegations against legal practitioners should be struck out from pleadings
• Whether a costs order de bonis propriis should be made against counsel and attorney for including offensive material in pleadings
• Whether condonation should be granted for late filing of a reply
• The proper approach to postponement applications in restitution matters
• The ethical duties of legal practitioners as officers of the court
• Whether allegations of professional misconduct can properly be included in pleadings where not necessary to establish a defence

1. Paragraphs 4.1, 4.2, 23, 43.2, 116 and 120.3 of the plaintiff's reply struck out. 2. Plaintiff permitted to file amended reply without scandalous matter by 10 December 2010, failing which entire reply struck out. 3. Plaintiff, attorney Mr. Matloga, and counsel Mr. Makhambeni ordered jointly and severally (the latter two de bonis propriis) to pay the 2nd-74th defendants' costs of the strike-out application on attorney-client scale, including costs of two counsel. 4. Plaintiff to pay the 2nd-74th defendants' costs of the postponement application on party-party scale. 5. Plaintiff to pay the 76th defendant's costs (including two counsel) of: (a) the 76th defendant's strike-out application; (b) the condonation application; and (c) the postponement application, on party-party scale. 6. Argument on costs of postponement of main trial reserved for 1 December 2010.

Pleadings containing allegations that are scandalous, vexatious or irrelevant must be struck out under Rule 23(2) of the Uniform Rules (applicable to the Land Claims Court via Rule 28(2)) where the opposite party will be prejudiced if the matter is not struck out. Allegations are scandalous if they contain unnecessary imputations of misconduct or bad faith against the opposite party or their legal representatives that are not required to establish the pleader's case. Legal practitioners as officers of the court owe duties of professionalism and courtesy to the court and to colleagues. Where legal practitioners include scandalous and gratuitous attacks on colleagues in pleadings without justification, particularly where the offensive material is not necessary to establish the client's defence, a costs order de bonis propriis is appropriate as a mark of the court's displeasure. Such conduct, when it involves serious accusations of breaching ethical duties, misleading courts, and subverting justice, impacts not only on the dignity of the individuals concerned but on the dignity of the administration of justice itself. A costs order de bonis propriis will be granted against legal practitioners where their conduct amounts to improper conduct, is motivated by malice, involves negligence in a serious degree, or is designed to harass the other side or obstruct justice, particularly where the practitioner reaffirms their support for the offensive material when challenged.

The court expressed serious doubt whether the legal representatives in the Haakdoornbult matter had any duty to inform the courts of the plaintiff's restitution claim regarding Pylkop, given that neither the landowners nor the State sought any order against Pylkop and no order involving Pylkop was made in those proceedings. The court observed that it failed to understand how rescission of the Haakdoornbult restitution award (if granted) could impact on the plaintiff's restitution claim in respect of Pylkop, as the plaintiff's claim remained "untrammeled by any order made in the Haakdoornbult case." Gildenhuys J noted that Pylkop was not "compensatory land" awarded to the Mphela family - they purchased it with proceeds from the forced sale of Haakdoornbult. The court quoted extensively from Protea Assurance Co Ltd v Januszkievicz regarding the seriousness of scurrilous attacks on legal practitioners, emphasizing that such conduct brings not only the profession into contempt but the whole system of justice. The judgment indicated that the conduct was so serious it was "at least highly arguable" that contempt of court had been committed. The court noted it was "astounding" that legal representatives would see fit to abuse senior colleagues in such circumstances, and stated the intention to "send out a strong message that the Court will not allow its process to be abused by legal practitioners hurling gratuitous insults at their colleagues."

This case is significant for establishing clear principles regarding professional conduct of legal practitioners in South African land claims proceedings. It demonstrates the Land Claims Court's willingness to robustly sanction legal practitioners who abuse court processes by including scandalous and unnecessary attacks on colleagues in pleadings. The judgment reinforces that legal practitioners as officers of the court must maintain professional standards and that gratuitous attacks on colleagues, even when clients may support such attacks, will not be tolerated. The case provides important guidance on when de bonis propriis cost orders are appropriate - not merely to punish but as a mark of the court's displeasure at conduct that brings the profession and administration of justice into disrepute. It also clarifies that allegations of professional misconduct should not be included in pleadings unless necessary to establish a cause of action or defence, and that the truth of such allegations is irrelevant to their propriety in pleadings. The judgment serves as a warning that courts will protect the dignity of the legal profession and the administration of justice by imposing personal costs orders on legal practitioners who engage in inappropriate conduct.