M Magigaba Incorporated Attorneys and Another v Legal Aid South Africa and Others (LCC147/2008; LCC 191/2008; LCC 05/2014) [2024] ZALCC 9; [2024] 2 All SA 407 (LCC) (4 March 2024)

FLYNOTES: LAND TENURE – Restitution claim – Legal fees – Work performed over years for community seeking restitution of land – Legal Aid taking over managing of legal assistance – Contending that firm not given mandate – Court satisfied that there was no termination of firm’s mandate – Once mandate not revoked then issue of accreditation was regulatory requirement to regularise payment for fees and disbursements incurred – Legal Aid ordered to pay firm such fees and disbursements as assessed by it or duly taxed – Restitution of Land Rights Act 22 of 1994, s 29(3).

IN THE LAND CLAIMS COURT OF SOUTH AFRICA

HELD AT RANDBURG

Case numbers: LCC147/2008

LCC 191/2008

LCC 05/2014

In the matter between:

M. MAGIGABA INCORPORATED ATTORNEYS

First Applicant

(Registration No.: 2007/028579/21)

ANDILE JUSTICE MAGIGABA

Second Applicant

and

LEGAL AID SOUTH AFRICA

First Respondent

CHIEF EXECUTIVE OFFICER OF

LEGAL AID SOUTH AFRICA

Second Respondent

MINISTER OF JUSTICE AND CORRECTIONAL

SERVICES

Third Respondent

REGIONAL LAND CLAIMS COMMISSIONER,

EASTERN CAPE

Fourth Respondent

JUDGMENT

SPILG J

INTRODUCTION

1. The legal firm M. Magigaba Inc Attorneys and Mr. Andile Magigaba who is a practicing attorney and sole director of the firm brought an urgent application against Legal Aid South Africa as the first respondent and its Chief Executive Officer as the second respondent for payment of amounts allegedly owing for legal fees and disbursements, including amounts due to counsel.

The Minister of Justice and Correctional Services was cited as the third respondent and the fourth respondent is the Regional Land Claims Commissioner, Eastern Cape (“the RLCC”). They were cited by reason of their interest in the matter but no relief was sought against them.

2. The RLCC is generally cited in proceedings as the representative of the Commissioner and of the Commission without the necessity of duplicating respondents by the inclusion of each one.

In Midlands North Research Group & others v Kusile Land Claims Committee & another [2010] JOL 26146 (LCC) Gildenhuys J appeared to recognise the RLCC as the alter ego of the Commission[1]. At present there is only one RLCC who represents all regions. Although there still exists Regional Land Claims Commission offices they all report to the central RLCC based in Pretoria.

3. The court was satisfied that if the allegations were established then the relief sought was sufficiently urgent to warrant a deviation from the procedural rules. Directives were issued under rule 34 on 20 October 2023 dispensing with the ordinary rules as to service and time limits and directing a virtual hearing on 31 October 2023 at which Legal Aid and its CEO were to show cause why the following orders should not be granted:

a. That they are directed and ordered to pay to the First Applicant the amount of R1,798,098.84, being the fees due by the First Respondent to the First Applicant in respect of the work performed by the Applicants and their counsel in respect of the matter of Kwalindile Community and Others v The Regional Land Claims Commissioner and Others within 5 days from the date of the granting of this Order.

b. That the First and Second Respondents be and are hereby directed to pay the amount referred to in subparagraph (a) hereof into the Bank Account of the First Applicant, the details of which are as follows:-

(details redacted)

c. That the First and Second Respondents shall pay the costs of this application jointly and severally, the one paying the other to be absolved.

4. The application was brought because Legal Aid refused to pay for the fees and disbursements claimed by the applicant since 1 January 2022 pursuant to its continued representation of the Kwalindile in the on-going court hearings that had commenced prior to Legal Aid taking over the management of legal assistance to litigants in land claims cases.

5. The claim for payment arises from legal work the first applicant alleges it has performed and disbursements for which it is liable, including counsel’s

fees , on behalf of the Kwalindile Community (“Kwalindile”) in three consolidated cases.

These cases involve Kwalindile’s claim for restitution of large tracts of land in and around Mthatha. The claim is opposed by the King Sabata Dalindyebo Municipality (“the Municipality”) and other alleged interested parties including the Zimbane Community which had lodged a competing land claim in respect of a portion of the land claimed by the Kwalindile.

THE ISSUE

6. The crisp issues are whether the applicant is entitled to charge fees or incur disbursements for any work performed prior to being accredited and, if it is still not accredited whether Legal Aid is entitled to withhold accreditation.

7. The resolution of these issues however involves whether;

a. accreditation is an administrative or regulatory process which, if satisfied enables the release of payment for work done and disbursements effected (subject to Legal-Aid’s internal assessment or external taxation processes) or whether the applicant never had a mandate to represent the Kwalindile or if it did that it was revoked.

b. the proper administration of justice and the interests of justice, involving provisions in the Bill of Rights, required the applicant to continue representing the Kwalindile, for which Legal-Aid is liable whether by reason of the invocation of negotiorum gestor , estoppel or unjustified enrichment (as expended by principles of ubuntu) or otherwise

8. Legal Aid took a number of legal points which also have to be addressed. They are;

a. this court lacks jurisdiction because the claim is one sounding in money which cannot be brought by way of application and that this court's jurisdiction is circumscribed by the provisions of s 22 of the Restitution of Land Rights Act 22 of 1994 (“the Act”) which does not recognize an application of this nature being cognisable by this court;

b. there is no urgency. Legal Aid submits that urgency was self-created and is bound up with the failure of the applicant to demonstrate a clear right (because they never were given a mandate), the failure to demonstrate irreparable harm since the applicant can bring action proceedings by way of summons and that there exists alternative relief open to the applicant in the form of such proceedings or by taking Legal Aid on review. Finally it is contended that the applicant will not suffer prejudice because if it is ultimately successful with its claim, Legal Aid will be able to satisfy the judgment in the ordinary course.

c. The matter is not properly before the court because the case number which is utilised for these proceedings was allocated to the main land restitution proceedings and Legal Aid is not a party cited in those proceedings nor are the applicants.

9. It is evident that some of these points in limine must assume the correctness of the allegations made, while certain of the other points taken are purely procedural and involve the exercise of this court’s discretion in order to facilitate the fair and expeditious resolution of land restitution matters- which include the right to a fair hearing and the procuring of legal assistance at the State’s expense when the Commissioner has considered it appropriate to do so under s 29(4) of the Act., and generally the interests of justice .

10. However the resolution of whether this court has jurisdiction should be dealt with ab initio and so too the purely procedural attacks.

JURISDICTION OF THIS COURT IN REGARD TO LEGAL ASSISTANCE

11. The starting point in appreciating the functioning of the provision of legal assistance under the Act is s 29 (4). It provides:

“Where a party can not afford to pay for legal representation itself, the Chief Land Claims Commissioner may take steps to arrange legalrepresentation for such party, either through the State legal aid

system or, if necessary, at the expense of the Commission.”

Section 29(3) is also relevant in that it recognises a right to legal representation. It reads:

“Any party appearing before the Court may do so in person or may be represented by an advocate or attorney.”

12. It is evident from the provisions of s 29(4) that the responsibility lies with the Chief Land Claims Commissioner (“the Commissioner”) to arrange legal representation. The Commissioner’s hands are however tied, in that under the section the source of legal assistance which can be accessed is either through the State legal aid system or, if necessary, at the Commission’s own expense.

Nonetheless the responsibility to take steps to arrange legal representation is that of the Commissioner. It is therefore of some significance that the RLCC gave notice that it would abide the decision.

13. Once the legislative source for the provision of legal assistance to litigate land claims matters is recognised to be s 29 (4) of the Act then it is clear that the obligation to provide legal assistance falls on the shoulders of the Commissioner who under that section is entitled to engage other State bodies to manage the provision of funding on her behalf.

Perhaps the two most important aspects Legal Aid officials fail to appreciate is that the assistance is provided by the Commissioner and that it is provided to enable litigants, and perhaps more especially indigent communities, to engage competent legal representatives and experts (more especially historians, anthropologists, land surveyors and archaeologists) in order to pursue their land claims against other parties under equality of arms. .

14. Legal Aid acts as the manager of funds which the Commissioner, exercising her discretion, determines is to be provided to a litigant.

It is also apparent that provided the legal representative qualifies for accreditation, the relationship between a claimant community and its legal representative is one where strong bonds are established over a lengthy period of time and where trust and respect are necessary to ensure the proper functioning of an attorney client relationship. Claimant communities under the Act are entitled to continuity of legal representatives if their case is to be properly pursued and the objectives of the Act achieved bearing in mind that the Act is the legislation which the Constitution, within its Bill of Rights provisions, required to be implemented. Section 25(7) of the Constitution provides that :

(7) A person or community dispossessed of property after 19 June 1913 as a result of past racially discriminatory laws or practices is entitled, to the extent provided by an Act of Parliament, either to restitution of that property or to equitable redress.

This provision is intended to properly redress through land restoration or other forms of restitution, the deprivation effected by successive pre-democracy governments of rights that Blacks had in land

15. Courts have repeatedly stated that a claimant who qualifies under s 2 (1) of the Act has a constitutional right to seek restitution of land rights which were taken from him or her while the landowner has a constitutional right to preserve his or her property. [2]

16. While s 34 of the Constitution entitles everyone access to the courts in order to have disputes resolved at a fair hearing which includes being legally represented (and expressly repeated in s 29(3) of the Restitution Act), s 29 (4) provides that the Commissioner may take steps to arrange legal representation for a party who is unable to afford it.

17. With this understanding of the aims and purposes of the Act infused as it is with the Constitutional values enunciated in s 25(7). it is now appropriate to examine s 22 of the Act. It provides:

(1) There shall be a court of law to be known as the Land Claims Court which shall have the power, to the exclusion of any court contemplated in section 166 (c), (d) or (e) of the Constitution-

(a) to determine a right to restitution of any right in land in accordance with this Act;

(b) to determine or approve compensation payable in respect of land owned by or in the possession of a private person upon expropriation or acquisition of such land in terms of this Act;

(c) to determine the person entitled to title to land contemplated in section 3;

(cA) at the instance of any interested person and in its discretion, to grant a declaratory order on a question of law relating to section 25 (7) of the Constitution or to this Act or to any other law or matter in respect of which the Court has jurisdiction, notwithstanding that such person might not be able to claim any relief consequential upon the granting of such order;

(cB) to determine whether compensation or any other consideration received by any person at the time of any dispossession of a right in land was just and equitable;

(cC) to determine any matter involving the interpretation or application of this Act or the Land Reform (Labour Tenants) Act, 1996 (Act 3 of 1996), with the exception of matters relating to the definition of 'occupier' in section 1 (1) of the Extension of Security of Tenure Act, 1997 (Act 62 of 1997);

(cD) to decide any constitutional matter in relation to this Act or the Land Reform (Labour Tenants) Act, 1996 (Act 3 of 1996);

(cE) to determine any matter involving the validity, enforceability, interpretation or implementation of an agreement contemplated in section 14 (3), unless the agreement provides otherwise;

(d) to determine all other matters which require to be determined in terms of this Act.

(2) Subject to Chapter 8 of the Constitution, the Court shall have jurisdiction throughout the Republic and shall have-

(a) all such powers in relation to matters falling within its jurisdiction as are possessed by a High Court having jurisdiction in civil

proceedings at the place where the land in question is situated, including the powers of a High Court in relation to any contempt of the Court;

(b) all the ancillary powers necessary or reasonably incidental to the performance of its functions, including the power to grant interlocutory orders and interdicts;

(c) the power to decide any issue either in terms of this Act or in terms of any other law, which is not ordinarily within its jurisdiction but is incidental to an issue within its jurisdiction, if the Court considers it to be in the interests of justice to do so.

18. The question of whether or not the Kwalindile were to continue engaging the applicant and whether the applicant has been accredited to do so and is or is not entitled to fees and disbursements in the engagement of counsel and the presentation of expert evidence, comprise matters which fall squarely under s 29(7), and others which are necessarily or reasonably incidental to the issue of conducting the trial fairly with adequate legal representation.

In any event the issue of continuing the trial with existing legal representation and their entitlement to fees, if the issue is one of accreditation or the existence of a mandate, is one which the court considers is in the interests of justice to do since only the court can release a legal practitioner from continuing to represent his client in an ongoing case which has been set down for resumed hearings. A court must also take into account that other parties are prejudicially affected if the case does not proceed while the client who is entitled to legal representation at the cost of the State (the Kwalindile) is prejudiced if it does.

The fact that the application is a declarator for payment of fees and disbursements in a monetary amount does not preclude it from determination by this court. If this court cannot determine an issue arising from the exercise of a s 29(4) power it is difficult to appreciate which court is, if regard is had to the exclusive jurisdiction exercised by this court in which there are no action proceedings, only referrals and applications. The provisions of s 22 are clearly intended to be far reaching and generous. They should not be unnecessarily limited

To acceded to Legal Aid’s argument will require this court to find that decisions requiring the payment of fees and disbursements under s 29(4) pursuant to proceedings brought on application were clearly wrong. See for instance the judgment of Mpshe AJ in Jacobs NO v Government of the Republic of South Africa (LCC64/2010) [2011] ZALCC 17 (26 August 2011). In that case Legal Aid was the fifth respondent and it was alleged that the incurring of expenditure in the form of legal fees had not been authorised, resulting in a refused to pay. The court ordered that payment be made into the trust account of the applicant’s attorney.[3]

19. The matter is clearly urgent. If the applicant is not entitled to fees and disbursements then it will not be able to meet its agreed obligations to pay SARS in instalments which in turn will result in SARS revoking the tax compliance certificate and the applicant losing its accreditation with Legal Aid because it will then not be tax compliant. That would amount to irreparable harm because the consequences are immediate. A successful trial in due course cannot undo the harm. The fact that ultimately Legal Aid will be good for the money is irrelevant.

This vicious circle requires urgent resolution. Either Legal Aid is or is not correct that the applicant’s accreditation is ineffectual in respect of fees and disbursements already incurred because accreditation is not equivalent to Legal Aid giving a mandate and no mandate has yet been given to the applicant to represent the Kwalindile in the present litigation, or because a mandate can only be prospective. Whether this is self-created urgency depends on the facts determined by the court.

20. The utilisation of an existing referral case number is a matter of convenience because in the course of a referral concerning one set of claimants in relation to a particular land claim, issues may arise involving other parties which may directly or indirectly impact on the claim, whether it be a competing claimant in respect of a part of the land or another land owner who was unaware of a claim or an interdict to restrain a third party who is not a party to the referral from accessing the land. This court has found it advisable from an administrative and logistical point of view to utilise the umbrella case number allocated to the referral

for all incidental litigation, even if it does not involve the existing parties to the litigation but where the issue may impact on the trial including the right to a fair trial and the proper running of the case to its conclusion in the interest of all the main parties.

21. Save for the issue of whether there is a genuine or real dispute of fact which still requires determination, the points in limine are without merit and are dismissed with costs.

22. The court proceeds to consider whether there is a dispute of fact as understood by Plascon-Evans.

Applicants’ representation of the Kwalindile prior to Legal-Aid involvement

23. The first applicant is the alter ego of the second applicant. It is convenient to simply refer to them as “the applicant” unless the context otherwise requires.

24. The applicant has represented the Kwalindile since 2007 pursuant to its appointment by the RLCC.

It is important to appreciate that prior to Legal Aid taking over the management of legal assistance on 1 January 2022 the applicant had been appointed to represent the Kwalindile. The selection of legal representation for communities under the provisions of s 29(4) of the Act had then been undertaken by The Land Reform Management Facility of The Department of Rural Development and Land Reform. This facility was managed by attorneys Cheadle Thompson and Haysom Inc (“CTH”).

In about 2019 attorneys Nkosi Sabelo Inc took over the management of the facility and the applicant continued to represent the Kwalindile.

25. Even prior to CTA taking over the management, Legal Aid had in fact been managing the provision of legal assistance for indigent communities in cases where the Commissioner had approved legal assistance to them under s 29(4). This is borne out by the August 2011 judgment of Mphse AJ in Jacobs NO referred to earlier.

It is relevant to note that the provisions of s 29(4) have not changed despite Legal Aid returning to manage the provision of legal assistance at the beginning of 2022.

26. As from 1 January 2022 the land reform management facility was assigned to Legal Aid South Africa and continues to be run under the management of the Land Rights Management Unit of Legal Aid South Africa (“LRMU”)

27. By the time LRMU took over the management of the Commissioner’s responsibilities on her behalf under s 29(4), the Kwalindile claims had already become trial ready and the trial hearings had in fact commenced .

This occurred after a lengthy process of hearing a number of applications, conducting pretrial conferences to bring the three cases to trial readiness and the conclusion of an intensive two day long court held inspection in loco which included the presiding judge and assessor.

28. The nature of the matter is complex and involves the history of both the Kwalindile and Zimbane, whether they were communities for the purposes of land restitution claims and where the people had resided or what areas they controlled and if so for how long. The evidence regarded by the parties as relevant stretch over a period of over a century and a half, much of which taking place against a backdrop of colonial dominance, negotiations, conquest, exploitation or rule depending on the approach advocated by each of the parties.

29. Not only are the issues complex and the area claimed large (including both land within the metropolitan area of Mthatha and also rural land on its outskirts) but it also involves disputes between more than one claimant in respect of land owned by different persons, some of the land allegedly being non-restorable.

30. The initial file numbers allocated to these cases indicate that over fifteen years has elapsed since they were first referred to this court by the RLCC. The effect of this on the claimants and on Mthatha and its development as well as on other affected landowners will be considered later in relation to the interests of justice and the protection of individual rights.

31. In order to give some indication of the prejudice which is occasioned if this matter did not proceed on the allocated dates:

a. Trial dates have to be agreed well in advance because of the busy diaries of the legal representatives and expert witnesses. Sometimes this has resulted in the trial only resuming some six months later or even longer.

b. Should any of the legal teams be unable to attend the trial on the agreed dates then the cost implications are significant.

There are five parties represented in court, each with its own team of counsel and attorney supported by experts in various disciplines. Four of the legal teams engage at least one senior counsel. Prior to her elevation to the Bench, the applicant had also engaged a senior counsel.

The fiscus in one form or another has been responsible for the payment of fees to all but one of the five legal teams. The cost to taxpayers is therefore significant. Organs of State have accepted responsibility for payment of the legal fees of both claimants and are responsible for the payment of the legal fees of the RLCC and the Municipality.

32. There is also prejudice to all the parties and the people of Mthatha the longer the trial is delayed;

a. Some of the original claimants have passed on and others are very elderly. As in the case of Mrs. Grootboom, if they are entitled to land restitution then, despite making claims over a quarter of a century ago, they will not realise the promise of land restitution provided for under the Constitution

b. The effect of gazetting the claims, which was a precursor to the referral, resulted in the land in issue not being developed either in the hands of the claimants if successful, or in the hands of the Municipality if its defence succeeds. The provisions of s 11 (7) of the Act, which effectively freezes development, has resulted in some prime development areas in the heart of Mthatha remaining moribund for over 25 years.

33. Any postponement of the case from its allocated dates affects the court and its strained resources and budget.

a. This case requires the allocation of a number of consecutive days and weeks to be set aside well in advance. Any postponement close to an agreed trial date does not allow enough time to re-allocate the dates for another trial. This prejudices the court and all the other litigants;

b. A postponement close to an allocated trial date also involves unnecessary engagements with the parties in relation to potential cost arguments, cancellations if the case is out of town and re-engaging the parties to agree on new dates which will further delay the finalisation of the matter.

34. In order to bring this long outstanding matter to trial readiness the court had to ensure the attainment of numerous procedural milestones in a coordinated manner. This required the involvement and cooperation of all the litigants and their legal representatives and experts.

Reference need only be made to there being no less than seven pretrial conferences held between November 2020 and September 2021 so as to ensure that, among other things the inspection in loco would be properly conducted and cover all points of relevance to each of the parties, that all outstanding pre-hearing admissions were finalised and all outstanding expert reports were delivered.

The inspection in loco was held on 25 and 26 May 2021. It involved observations made at 35 different sites over a very large area in and around Mthatha by all the parties and their experts in the presence of their legal representatives. Throughout the inspection members of both the Kwalindile and Zimbane were present as observers assisting their legal teams and also were engaged in the pointing-out and describing its relevance .

The minutes of the inspection are 78 pages in length excluding the contents of a detailed map.

35. It is relevant to point out that the procedural and logistical steps alone that were required to bring to trial readiness the determination of the competing land claims of the applicant’s client and the Zimbane community in the three cases were formidable. And this was not only from the court’s perspective. Every legal representative was required to have a comprehensive understand of his or her client’s case, including what the experts had to say, by the time of the inspection to enable all relevant topographic and man-made features (i.e. both natural and constructed features) together with their alleged significance (from a dating and cultural perspective) to be pointed out and explained. The bundle of experts’ reports is in excess of 1000 pages.

36. The road map to trial readiness had already been finalised at the pre-trial conference of 24 March 2021. On that date the milestones for completing all outstanding prehearing matters and interlocutory applications was agreed upon and the trial date set for 17 and 18 May 2021 to deal with the interlocutory matters, 24 to 27 May to arrange for and complete the inspection after which the

experts would present their evidence.

37. The evidence of the experts commenced on 14 October through to 20 October 2021 with the evidence of Prof Mayende who was called on behalf of the Kwalindile. By the end of that session he had been led in chief by the applicant’s senior counsel, Adv Norman, been cross examined by the competing claimant’s counsel, Adv Krige, and was still being cross-examined by the City’s senior counsel Adv Grobler. The case was then postponed on 20 October 2021 to 16 May 2022 for the resumption of Prof Mayende’s cross examination and re-examination by the applicant’s counsel. This was the first available date for the parties and the court (due to its own case load) to resume the hearing.

38. It is not an overstatement to observe that at least by the time of the inspection in May 2021, each of the parties and their legal representatives would have established the common understanding and trust necessary for at least the attorneys to effectively and fairly represent their clients, brief counsel and engage experts- and this would have persisted through to the hearings in October 2021

Events from Legal-Aid’s involvement to provide legal assistance

39. It is common cause that the applicant has been paid for all fees and disbursements incurred up to the end of December 2021 through the various legal assistance regimes responsible for its management. .

40. Mention has been made that Legal Aid took over the managing of legal assistance on behalf of the Commissioner on 1 January 2022.

In anticipation of this, on 28th October 2021 Nkosi Sibelo Inc addressed a letter to existing panelists, including the applicant, advising them of the transfer of legal representation functions of the land rights management facility to Legal Aid. All panelists were requested to ensure that they are accredited on the Legal Aid judicare system, secure compliance with its requirements and that they are on the National Treasury Central Supplier Database (“CSD”), secure compliance with Treasury regulations and Legal Aid requirements. Panelists were also to ensure that they were tax compliant with the South African Revenue Service (“SARS”).

In the letter all panelists who were not accredited on the Legal Aid Judicare system were requested to approach its local offices for the purposes of accreditation and to do this by 13 November 2021.

41. This first crucial letter does not mention that the appointment of legal practitioners will be terminated if accreditation was not secured by a particular date. Nor does it state that a new mandate is required by a panelist to continue acting for an existing client.

On the contrary the letter is headed “Transfer of Legal Representation of Land Rights Management Facility to Legal Aid South Africa” and refers to the transfer of the functions undertaken by the LRM facility of the Department to Legal Aid “ at the centre of the efforts towards land justice” .

The letter also states that Legal Aid, being aware that:

”there is an existing panel of legal practitioners that is currently providing services to … restitution claimants…,

is of the opinion that it will be cost effective for it to retain the said panel of lawyers. However, the panelist will have to be accredited on the judicare system and National Treasury central supplier database (CSD) to ensure compliance to treasury regulations

and Legal Aid requirements.

The letter proceeds to request all panelists to ensure that they are accredited on the system, that they are on the National Treasury CSD and ensure that they are tax compliant.

The letter concludes with a request to all panelists who are not accredited on Legal Aid’s system to approach its local offices for the purposes of accreditation and that this must be done by 30 November 2021.

Nowhere in the letter of 28 October is there a suggestion that those who were providing services to restitution claimants at the time required a new mandate or even that they will have their existing mandates revoked.

Quite the contrary; the letter indicates that there will be a transfer of responsibility in the management of legal assistance and that there are accreditation requirements which existing panelists must satisfy. There is also no indication that mandates will be revoked if all the requirements for accreditation are not satisfied within the month (i.e. by 30 November 2021)

42. On 30 October 2021 the applicant responded and requested to remain on the panel of attorneys in respect of the Kwalindile matter when the facility was transferred to Legal Aid. The applicant also requested accreditation application forms and other necessary documentation to facilitate the accreditation process.

43. On 2 December 2021 Legal Aid addressed a letter to the land rights management facility panelists requesting attorneys who were not by then accredited on its Judicare system by 15 December 2021 to return their case files to Legal Aid as they would have no further mandate after 31 December 2021 to provide legal representation.

The letter effectively repeats that Legal Aid considers it cost effective to retain the panel of lawyers but that they will have to be accredited on the judicare system and National Treasury CSD to ensure compliance with treasury regulations and Legal Aid requirements.

The letter continued that, in addition to complying with the requirements set out in the Legal Aid Act and regulations as well as the Legal Aid Guide, attorneys had to comply with a number of obligations and duties when providing legal services, briefing counsel, utilising the services of experts, handling urgent applications and what is to occur when instructed on a new matter for the first time (“New Instructions and Budget”).

There followed a separate heading “Accreditation of Attorneys which repeats what is referred to Nkosi Sibelo’s letter of 28 October but adds that

“We request the attorneys that are not accredited on Legal Aid SA judicare system by 15 December 2021 to return their case files to Legal Aid SA as they have no further mandate after 31 December 2021 to provide legal representation.

If the applicant’s mandate terminated with effect from 1 January 2022, then the issue arises whether Legal Aid was obliged to procure legal representation for the Kwalindile in time for the matter to proceed five and a half months later on 16 May, and if so, what were the consequences of its failure to do so and what could possibly account for such failure.

44. The difficulty with this letter being a clear termination of all panelist’s mandates at the end of the year if they did not obtain accreditation by 15 December is that prior to 15 December further correspondence ensued.

a. On 6th December there was another general letter addressed by Legal Aid to all panelists. The letter dealt with complaints by some panelists who claimed to have experienced difficulty in complying with the 2 December request including not being able to access the system.

Legal Aid however informed them that they now would have to be accredited on or before 10 December 2021 “ in order that instructions can be issued by Legal Aid SA to attorneys to continue to provide legal representation to their existing clients as from 1 January 2022 “.

b. On 6 December 2021 the applicant completed the Legal Aid accreditation agreement form and sent it to Legal Aid.

Legal Aid responded on 10 December advising that the J4 form, the certificate of good standing and the High Court appearance certificate had not been submitted;

It will be recalled that in terms of the previous letter, attorneys were to ensure that they are accredited by 10 December in order that instructions can be issued for them to continue providing legal services to their existing clients.

Although this letter is dated 10 December at just before 16:00, it concludes:

“Therefore, in order for us to complete the process of the above mentioned please send us the outstanding documents….

Please advise should you require any additional information”

The process that is referred to is the " Judicare Accreditation Application”

45. The letter of 10 December therefore keeps the door open for accreditation to occur after the date stipulated in Legal Aid’s letters of 2 December read with that of 6 December.

46. The applicant clearly understood it this way. It contends that the trial had already commenced, the experts were giving evidence and it would not have been practicable to simply stop trial preparation and return the files or terminate the mandates of counsel or the expert who was in the witness box still giving evidence and would have to be re-examined by Kwalindile’s counsel once all the other counsel had completed their cross-examination.[4]

47. A factor which the court must take into account is that Legal Aid, despite being aware that the applicant had been representing the Kwalindile and that the trial was part heard, did not inform the applicant at any time after 1 January 2022 that its mandate had been terminated or that the files had to be returned so that they could be given to a new firm of attorneys and counsel, and equally significantly, nor did Legal Aid arrange for the Kwalindile to obtained alternative legal representation which Legal Aid was obligated to do if the applicant’s mandate had been terminated.

This is so because the Commissioner had determined that the Kwalindile were to receive legal representation and the trial was resuming only in mid-May 2022. This would have given Legal Aid adequate time to arrange for new legal representation . It does not claim to have taken any steps to appoint a new legal team which would have had to be the case if the applicant’s mandate had been terminated or if Legal Aid were performing its functions as it is statutorily and constitutionally obliged to for the benefit of the indigent claimant.

48. The applicant also submitted that no one at either Legal Aid or Nkosi Sibelo Inc advised or even hinted that the applicant would not be paid for any work performed before accreditation was obtained and the applicant had no reason to believe that it would not become accredited. The applicant pointed out that other attorneys who had similar problems had been paid for all the work they did even if the work was performed before becoming accredited.

Legal Aid did not deal pertinently with these allegations but spoke around them. In its answer, Legal Aid said that the applicant was never given a mandate by it to continue representing the Kwalindile and that all other legal practitioners who continued to represent the claimants were accredited and are compliant. It is however common cause that the legal representatives for Zimbane received payment for fees and disbursements incurred prior to obtaining accreditation.

The import of this is that despite Legal Aid’s denial regarding the entire contents of the relevant paragraph, the explanation for the denial does not challenge the allegations made by the applicant that it was never told that payment for work performed before accreditation would not be paid.[5]

49. The trial proceeded on 16 to 27 May 2022. The applicant continued to represent the Kwalindile and re-examined Prof. Mayende who completed his testimony. Other experts were called and were cross-examined by applicant’s counsel.

The trial was adjourned on 27 May 2022 to 6 February 2023. This was by agreement between the parties and had regard to certain exigencies which had arisen and which precluded an earlier date.

50. The length of the intervening period between these trial dates is significant.

It was just over eight months. If the applicant’s mandate to represent the Kwalindile had in fact been withdrawn by Legal Aid then it would have appointed new attorneys and counsel who could have used the eight months to prepare, albeit at a considerable duplication of costs.

This is another factor the court must weigh in determining if the mandate was in fact terminated or if Legal Aid was prepared to wait for the applicant to complete the requirements for accreditation and pay for work already done.

51. On 8 September 2022 the applicant then submitted its first invoice for fees and disbursements, including a considerable sum for counsel, to Legal Aid. The statement covered the work done from 3 February to 18 July 2022 and was for a total amount of R394 173.05.

52. The hearing of expert evidence resumed on 6 February 2023 through to 3 March. The trial was then adjourned to 2 May.

53. By 20 February 2023 the Registrar of the High Court , Pietermaritzburg had issued the applicant with a High Court Appearance certificate. By 23 February 2023 the Legal Practice Council had issued the applicant with a Certificate of Good Standing. This left outstanding the applicant’s tax issue with SARS.

54. On 19 April 2023 the applicant sent its second invoice for fees and disbursements to Legal Aid. Once again, a considerable portion was for counsel’s fees. The invoice covered the period 19 January to 17 March 2023 and came to R 517 759.21.

55. The trial continued from 2 May to 27 May 2023 with some breaks in between.

During the entire period from 6 February to 27 May 2023, the evidence of Prof Mayende (historian) was completed, as was that of Mr. Halkett (archeologist and aerial photography), Mr. Nattuvangam (land surveyor), Mr. Xaba (land surveyor), Prof Peires (historian), Ms. Cornell (oral historian) and Mr. Joubert (mapping). In addition lay witnesses were called on behalf of the Kwalindile and the Zimbane.

56. On 27 May the parties agreed to resume the hearing on 1 August to 4 August and again from 21 August to 8 September 2023, the breaks being necessitated to accommodate the parties, witnesses and the court’s other trial commitments.

Of importance is that these dates had to be thrashed out to secure agreement that this would be the final session for the completion of all outstanding evidence so that the only remaining aspect would be the hearing of argument.

Pressure had been exerted on all the parties to finalise these dates because the matter had dragged on for so long and finality was required in the interests of justice. I was first seized with the matter at the end of November 2020 after the judge who had been dealing with it took ill. It took until May 2021 for all outstanding pre-hearing applications to be dealt and for the matter to reach trial ready stage. The trial then commenced with the inspection in loco near the end of May 2021 and subsequently continued through to 27 May 2023- a total period of two and a half years- in order to reach the final leg of only 19 further court days required to complete the evidence.

57. The applicant presented a third invoice to Legal Aid on 31 May 2023 for the period 2 to 26 May 2023. The total bill came to R 427 395.58

58. On 19 June the applicant received a call from Mr. Mbhense, the Legal Executive of the Land Rights Management Unit of Legal Aid. He enquired about the trial’s progress. The applicant explained that they had led the evidence of Kwalindile’s lay witnesses and that the trial had not yet finalised.

Mr. Mbhense then asked the applicant who was going to pay for the work done as it was not accredited with Legal Aid

The second applicant advised that he had obtained most of the documents required for accreditation but that only the tax compliance document was outstanding. It was then that Mbhense advised for the first time that due to the applicant’s status with SARS, Legal Aid would not be paying its fees and disbursements for any work that had been performed since 2021.

Mbhense in his answering affidavit does not directly dispute this exchange. He does not directly challenge that the issue of accreditation was raised during this discussion as being the reason for non-payment of any amounts since 2021. He however disputes that this was the first time the applicant was informed that it would not be paid “for work done whilst he was not accredited nor mandated by (Legal Aid) to represent any of the parties in the matter”.[6]

I have scoured the answering affidavit and there is no express statement that the applicant was informed that it would not be paid for all work done once accredited. The furthest Mbhense goes is to state that the applicants were never instructed by Legal Aid to represent the Kwalindile but were in fact “advised to return the files” and that: “Consequently, the applicants are not entitled to claim money or payment” from Legal Aid.

Absent is a statement that the applicant was in fact told that they would not be entitled to payment for as long as they were not accredited even if they had continued to do work on behalf of the Kwalindile”[7]. I should also point out that the only reference to returning the files was in Legal Aid’s letter of 2 December and, as I have found earlier this was overtaken by events.

The high water mark of the answering affidavit is that the applicant was never given a mandate, not that the mandate that had existed prior to Legal Aid taking over the managing of legal assistance had been revoked or that accreditation was anything other than a regulatory requirement to secure payment.[8]

Mbhense does not contend that there is correspondence on or after 1 January 2022 which in fact terminates the existing mandate or that anyone else was appointed to represent the Kwalindile, which would have to be the case if Legal Aid had in fact terminated the mandate.

59. The exchange with Mbhense prompted the applicant to address a letter to the court on 25 June 2023 advising of their conversation and informing the court that the applicant had to stop acting in the matter.

.

60. This occurred during the recess while the presiding judge was away. Once the court became aware of the letter a pretrial conference was called for 25 July to address the issue.

The court however made it clear in its directive of 19 July that it would under no circumstances release the legal representatives of any party from continuing to represent their clients until the matter was completed. The court directed the applicant and his council to continue to represent the Kwalindile and that they would not be released. At that stage the reasons given were;

a. the parties had enjoyed legal representation and in the case of the Kwalindile the applicant had represented them since 2007 in litigation that had already gone right up to an appeal and back to the court

b. the trial had already run for many weeks, including an extensive inspection in loco with numerous case management meetings by reason of the nature of the matter, involving competing claimants for very large tracts of land in the heart of Mthatha.

c. no other legal representatives could readily take over the matter from the applicants on behalf of the Kwalindile in time to finalise the matter over the allocated dates of hearing

d. The cost of any postponement would be prohibitive and could not be borne by the Kwalindile or the Commissioner since neither was at fault

e. the dates for the continuation of the trial to finalisation had been agreed as the only dates available and the court had to change its own schedule to accommodate the parties

f. there were no other dates available to complete the case during 2023 and the presiding judge would be retiring in 2024 and was unable to find dates before his retirement in substitution for the dates arranged.

g. the interests of justice dictated that the case could not be postponed and that the applicant, as legal representative of the Kwalindile since inception, would not be released from continuing with the case on the dates allocated

61. The court also indicated that the applicant was at liberty to bring such application it considered appropriate against Legal Aid and make such arrangements as might be necessary regarding its obligations to SARS.

This cannot be read as inviting an application which would be positively received, but in fact indicated that while the court insisted that it would not release legal representatives, since only it can during the course of an ongoing trial, it did not close the door to the applicant either making arrangements with SARS to regularise its tax position or to challenge the actions of Legal Aid. [9]

At that stage the court was more concerned that the applicant and its counsel had been engaged in the matter and had earned fees from 2007 to at least the end of 2021, and at the eleventh hour were putting at risk the final leg of 19 days of evidence. If the applicant was not legally entitled to payment that would be of its own making, but the applicant could not be permitted to derail the court finalising the hearing of evidence or force a postponement at considerable cost and inconvenience to all the other parties. It should be recalled that the time elapsed since the previous hearing was itself considerable and most of the remaining lay witnesses were elderly while some had already passed on. .

62. Although Mr. Mbhense did not attend the pretrial conference on 25 July, he did submit an e-mail on 19 July in which Legal Aid’s position was put, namely that;

a. in terms of paragraph 4.3.1 of the Legal Aid manual, it was necessary for a legal practitioner to comply with the following criteria in order to qualify for accreditation;

i. the practitioner must be registered on and be in full compliance with all the requirements of the National Treasury database and

ii. must be in good standing with SARS

b. In terms of National Treasury Instruction no 9 of 2017/2018 as a bid condition, accounting officers and accounting authorities must request bidders to register on the Government’s central supplier database and to include in their master registration number in order to enable the institution to verify the suppliers tax status on the central supplier database

c. that it would be impossible for Legal Aid to allocate this matter to the applicant because it is not accredited, not tax compliant and not registered on the central supplier database

d. that any attempt by Legal Aid to allocate the matter to the applicant would be irregular and subsequent payments by it would constitute an irregular expenditure

e. that the applicants clients must be advised with immediate effect to approach any office of the Legal Aid to apply for legal assistance and that Legal Aid would then consider their application and if they qualify for legal aid in terms of the regulations and manual of the Legal Aid, the application would be approved and the matter would then be allocated to another legal practitioner who is accredited at Legal Aid, is tax compliant and is registered on the central supplier database

63. Although Mbhense did not attend the pretrial conference, Mr.Silwane of the local Legal Aid office did. When asked about the consequences that would arise if the applicant could not continue representing the Kwalindile he referred back to the letter from Legal Aid to practitioners of 2 December 2021 where they were informed to return the files if they were not accredited.

64. At the pretrial, the court asked the applicant about the status of its accreditation. The court was informed that the only outstanding issue was the tax clearance certificate and that it was being discussed with SARS. The court reiterated that it would not allow the applicant to withdraw from the matter for the reasons previously given.

65. The trial then proceeded with the applicant and its counsel representing the Kwalindile. The first session was in fact from 1 August to only 3 August.

66. The applicant obtained a tax compliant document on 21 August 2023 from SARS. This was sent by email to Legal Aid on 23 August. The applicant was then asked by Legal Aid to forward its CSD MAAA number which was duly done.

67. In the meanwhile the trial had continued on 21 August and concluded on 8 September 2023 when all the outstanding evidence from members of the claimant communities was completed .

68. During the course of the session it became apparent that there were still difficulties being experienced and on 31 August a meeting was held in my chambers in Mthatha with all the legal representatives, including those representing the RLCC. In view of the discussion the court requested that a written statement be prepared of their complaints in the belief that this could be brought to the attention of Legal Aid officials and hopefully could be amicably resolved

69. On 4 September Mr. Dotwana from Legal Aid was present and advised the court that as far as Legal Aid was concerned the applicant was still not accredited and that this was the reason for non-payment.

70. This prompted another meeting being called on 7 September since it appeared that either the documentation which the applicant had produced for accreditation purposes had not reached Legal Aid or there was some other difficulty which had arisen.

71. At the meeting of 7 September Mr. Silwane who is from Legal Aid Head office and Dotwana from its Mthatha office attended.

72. Silwane advised the court that the applicant was still not tax compliant and for this reason it was not being paid. The applicant contended that it became tax compliant on 21 August 2023. The court again made it plain that it was not going to release the applicant from its obligation to continue representing the Kwalindile.

Thereafter the applicant sent a statement for fees on 12 September to Legal Aid for work done between 25 July and 8 September 2023. The amount totaled R 458 771.

73. On 15 September 2023 Legal Aid then addressed a letter to the applicant advising that its accreditation had been successful. The applicant responded on 18 September by enquiring about payment of the outstanding invoices.

74. On the same date Mbhense responded by referring to Legal Aid’s earlier letter of 5 September where it implied that the applicant would not be paid despite now being accredited.

75. The applicant contends that Legal Aid’s refusal to pay fees is an abuse of power since it knew since 2021 that the applicant was working on the matter and at no time until 19 June, which was so to speak in the dying days of the trial, did Legal Aid indicate that even if the applicant was to be accredited, it would not be entitled to its fees for any work done or disbursements incurred prior to the date of accreditation.

76. The applicant obtained a SARS tax clearance because it had reached an agreement that it would pay an amount of some R26 300 per month in settlement of the debt it owed to SARS until the outstanding amount was paid. In terms of the agreement SARS was entitled to cancel the arrangement if any installment was unpaid.

Summary of undisputed facts

77. The correspondence reveals that Legal Aid informed the applicant that its mandate would be terminated if it was not accredited by 10 December 2021. However in correspondence of 6 and 10 December it became evident that the applicant was being given an opportunity to regularise its affairs with SARS and could still be accredited for the purposes of continuing with the Kwalindile case.

78. The correspondence and the contents of Legal Aid’s answering affidavit also reveal that it never sent a letter terminating the applicant’s mandate, but ran its defence, at least in its answering affidavit, on the basis that the applicant never had a mandate. The difficulty for Legal Aid is that if the applicant did not have a mandate or Legal Aid had withdrawn its mandate then it was obliged to secure alternative legal representation for the Kwalindile since the Commissioner had directed that the community was indigent and entitled to legal assistance. I also refer to the underlined portion of Legal Aid’s

contentions contained in its letter of 19 July .

Legal Aid however did not provide new legal representation. This can only be accounted for, having regard to its statutory and constitutional obligations (in the case of land restitution matters), on the basis that it had not terminated the applicant’s mandate despite being aware, through the applicant’s fee statements, when the call was made on 19 June 2023 that the trial had been ongoing since 1 January 2022.

79. Despite confirming receipt of three statements, each being for a significant amount of fees and payments due to counsel and the expert, Mbhense does not give any acceptable explanation for Legal Aid failing to respond and advise the applicant that it has no mandate to represent the Kwalindile and will not be paid.

It is necessary to repeat that the furnishing of invoices for the payment of legal work done was not an isolated or insignificant event that it was possible to ignore. There were three in number spread over an eight month period, the first being submitted in September 2022, the next in April 2023 and the third on the last day of May 2023 for amounts of not less than R R394 000, R517 000 and R427 000 respectively. Each invoice was detailed and set out all the legal work that was done.

Despite all this

a. Mbhense pointedly fails to explain why the applicant was not informed by word or through correspondence that the invoices would not be paid. The only excuse offered for failing to respond when the invoices were presented is the following:

“ … that invoice was not attended to because there was no mandate given to the applicants to act for the claimants in this matter. It should have dawned on the applicants at that stage that it was unsafe from a fees perspective to continue rendering a service whilst their account was not processed for payment”. [10]

“I submit that the applicants should not have continued to render a service after they have noticed that previous invoices were not paid ....”.[11]

b. Legal Aid as a fact did not procure legal assistance for the Kwalindile despite knowing that the case was proceeding and despite claiming that no mandate had been given to any attorney to represent them.

80. Legal Aid however submits that the applicant knew as far back as December 2021 that they will not be paid as they did not have a mandate from Legal Aid to act for the Kwalindile and that they were instructed to return the files. [12]

81. While this is a case on motion where the Plascon-Evans[13] principles apply, it is relevant in determining whether there is a real or genuine dispute of fact to take into account the application

of Benefit Cycle Works. [14]

In that case it was held that a party’s silence by not replying to a communication, when a reply would be expected if its gravamen was genuinely disputed at the time, may amount to an admission of the truth of an assertion contained in it.

This was qualified in McWilliams v First Consolidated Holdings (Pty) Ltd 1982 (2) SA 1 (A) at 10E - H where the court said:

'I accept that ''quiescence is not necessarily acquiescence'' (see Collen v Rietfontein Engineering Works 1948 (1) SA 413 (A) at 422) and that a party's failure to reply to a letter asserting the existence of an obligation owed by such party to the writer does not always justify an inference that the assertion was accepted as the truth. But in general, when according to ordinary commercial practice and human expectation, firm repudiation of such an assertion would be the norm if it was not accepted as correct, such party's silence and inaction, unless satisfactorily explained, may be taken to constitute an admission by him of the truth of the assertion, or at least will be an important factor telling against him in the assessment of the probabilities and in the final determination of the dispute. And an adverse inference will more readily be drawn when the unchallenged assertion had been preceded by correspondence or negotiations between the parties relative to the subject-matter of the assertion. (See Benefit

Cycle Works v Atmore 1927 TPD 524 at 530 - 2; C Seedat v Tuckers Shoe Co 1952 (3) SA 513 (T) at 517 - 18; Poort Sugar Planters (Pty) Ltd v Umfolozi Co-operative Sugar Planters Ltd 1960 (1) SA 531 (D) at 541; and cf Resisto Dairy (Pty) Ltd v Auto Protection Insurance Co Ltd 1963 (1) SA 632 (A) at 642A - G).'

82. The court is satisfied that there was no termination of the applicant’s mandate if regard is had to the conduct of Legal Aid in not requiring the return of the files after 1 January 2022, in not refusing to accept the invoices or notifying the applicant that they would not be paid, in not providing any other legal representation for the Kwalindile despite knowing that the trial was on-going and that it had an obligation to provide legal assistance for the community pursuant to the Commissioner’s determination, and despite knowing that the only purpose of the applicant seeking accreditation was to continue representing the Kwalindile in a matter that had started in 2007.

83. Once the mandate was not revoked then the issue of accreditation which was solely for the purposes of the Kwalindile matter was a regulatory requirement to regularise the payment for fees and disbursements incurred. Since payment can only be effected once accreditation occurs the amount only becomes due and payable on accreditation. Nor can there be a concern about wasteful or unauthorised expenditure. The expenditure had been authorised when the Commissioner exercised the power under s 29(4) to provide legal assistance to the Kwalindile. The only issue is whether the amounts claimed are within the fees parameters.

84. The court expresses concern at the position adopted by Legal Aid when it knew that the trial had continued after January 2022 yet took no steps to provide alternative legal representation or demand return of the files. It in fact let the applicant continue in the belief that once accredited it would be entitled to recover its fees and disbursements.

Only two explanations are open to Legal Aid. Either the one hand does not know what the other is doing and it is acting in breach of its statutory obligation to provide legal assistance to the Kwalindile as had been required of it when the Commissioner exercised the power under s 29(4), or Legal Aid is opportunistic in knowingly allowing the applicant to incur costs and disbursements in providing legal assistance to the Kwalindile without any intention of meeting its own obligations to provide such legal assistance at State expense.

Legal Aid is not a private litigant. It is a statutorily created institution which is obliged to fulfil its mandate of procuring legal services to indigent communities to enable them to bring their claims for restitution of land rights and not to abdicate that function.

85. The concern that if it pays the applicant for work done it will be acting contrary to various legislation and regulations is illusory. Once accreditation takes place there is compliance and payment for any work performed only then becomes due and payable. To hold otherwise would mean that the moment an accredited panellist defaults with a tax obligation it must desist from representing the client despite having a mandate and even if the case is continuing in court. The court must run efficiently in the interests of the proper administration of justice and in the interests of all the other litigants and in obtaining finality. An intolerable situation will arise if the requirements of accreditation are to be regarded as something other than regulatory requirements for the proper administration of Legal Aid and therefore can regularise an existing situation once it has occurred.

86. If I am wrong then both the proper administration of justice and the interests of justice, involving as it does provisions in the Bill of Rights, required the applicant to continue representing the Kwalindile, for which Legal-Aid is liable by reason of the invocation of negotiorum gestor, that Legal Aid is estopped from contending that the applicant did not have a mandate or that Legal Aid has been unjustifiably enriched at the expense of the applicant (as expanded by principles of ubuntu to such extent as may be necessary).

87. The interests of justice and its proper administration require that indigent communities are provided with legal assistance in cases where they seek to enforce a constitutionally recognised right to restitution by reason of past discriminatory laws or practices which resulted in their being dispossessed of land or a right in land and under s 29 (4) of the Act to legal assistance at the States’s expense in order to pursue such constitutionally recognised right.

88. The proper administration of justice and the interests of justice also require that a court must resolve disputes fairly, expeditiously and bring cases to finality in a cost effective way for all the litigants and the court structure as well as ensure the optimal utilisation of the judges’ time where court resources are stretched.

89. The applicant continued to represent the Kwalindile because Legal Aid did not provide another legal representative to do so even when the court was obliged to adjourn the matter for lengthy periods. Legal Aid cannot take the advantage of the Kwalindile enjoying proper legal representation when it did not provide this for them despite being obliged to once the Commissioner had decided under 29(4) to provide legal assistance for the Kwalindile. To the extent that the necessity requirement of negotiorum gestor may appear thin, the relationship established between the applicant, counsel and the Kwalindile since 2007 was one of trust and respect which is essential in a long duration matter, that is as highly charged as a land claim matter, and which relationship is difficult to replace even over a period of time.

90. The conduct of Legal Aid in not taking steps to obtain the files after 1 January 2022, in not sending a communication that the mandate was revoked, in not returning any of the three invoices or replying that there is no relationship whereby the applicant can claim fees from Legal Aid and its failure to appoint alternative legal representatives despite its obligation to provide legal assistance to the Kwalindile resulted in the applicant acting to its prejudice because it bona fide believed by reason of the conduct of Legal Aid that, provided it obtained the clearances, it would be accredited and could recover all fees and disbursements it incurred in representing the Kwalindile.. The applicant is therefore entitled to rely on estoppel where the transaction is essentially a commercial one.

91. In both the case of negotiorum gestor and estoppel their contractual law principles should be viewed through the prism of ubuntu.

92. In Beadica 231 CC and Others v Trustees for the time being of the Oregon Trust and Others 2020 (5) SA 247 (CC) Victor AJ said at paras 207 and 208:

[207] As the analyses conclude in the first and second judgments, the law of contract has moved away from formalism towards substantive fairness. I emphasise the value of ubuntu in adjudicating contractual fairness as it has a greater and context sensitive reach, especially where there is inequality in the bargaining power between the parties. In my view, there is a danger in conflating or characterising fairness and ubuntu as being a single concept. The full scope and ambit of ubuntu is considerably wider than fairness. As stated in Everfresh—

“[ubuntu] emphasises the communal nature of society and ‘carries in it the ideas of humaneness, social justice and fairness’ and envelopes ‘the key values of group solidarity, compassion, respect, human dignity, conformity to basic norms and collective

unity’.”]

[208] In true fidelity to our transformative constitutional project, ubuntu is an appropriate adjudicative value in reaching substantive fairness between contracting parties. Ubuntu provides a particularistic context in the law of contract when, for example, addressing the economic positions or bargaining powers of the contracting parties

93. In that case the contractual issue concerned a black economic empowerment initiative and consequently its purpose was to redress economic disempowerment of historically disadvantaged persons. Victor AJ was of the view that :

This context requires a nuanced approach in balancing contractual autonomy and transformative constitutionalism.”

94. In the present case the Kwalindile, in pursuing the constitutional right which they allege to restitution of land, were entitled to legal representation by reason of being an indigent community as determined by the Commissioner under s 29(4). Legal Aid did not provide legal assistance as it was obliged to despite the applicant having provided the community with legal representation at State expense for 14 years from 2007 to the end of 2021. Even though the applicant was obliged to obtain accreditation to continue receiving payment for work done it did not, but neither did Legal Aid secure legal assistance but relied on the applicant to continue to provide legal representation under the pre-existing contractual relationship until it was able to secure accreditation.

95. The possible claim for unjust enrichment would be founded on Legal Aid ultimately benefitting at the expense of the applicant because it knowingly allowed the latter to continue providing legal services and incurring disbursements for and on behalf of the Kwalindile which it, Legal Aid, was statutorily responsible for. Legal Aid gained the benefit of not itself procuring at its expense such services or otherwise fulfilling its statutory obligation to the Kwalindile and to the Commissioner pursuant to the exercise of the s 29(4) discretion.

96. This is not a case where a firm of attorneys has tried to commandeer a case or touted for work. This is a case of a dedicated set of legal practitioners who held the interests of their client paramount by reason of the long road they had travelled together, and the bonds forged which were unlikely to be replicated.

This is essentially a case about whether or not the applicant could make an arrangement with SARS and the conduct of Legal Aid is consistent only with this being its understanding. It was never about Legal Aid not paying the applicant for work done once it became tax compliant because it had paid at least one other panellist in a similar position and Legal Aid in performing its functions cannot act in a discriminatory manner.

Furthermore the provision of legal assistance for the Kwalindile is umbilically linked to the restitution of land rights project and Legal Aid did not provide alternative legal representation for them despite the trial being on-going for a considerable time after it took over the management of legal assistance on 1 January 2022. And the court in the performance of its constitutional obligation to secure the fair and expeditious trial of a land claims matter cannot be expected to relinquish its functions and duties nor is it prepared to be placed in the middle when Legal Aid had ample opportunity to have properly terminated the applicant’s brief and appoint other legal representation but elected not until almost the end of the trial.

CONCLUSION

97. The applicant is entitled to payment of fees and disbursements for legal services provided to the Kwalindile once it became accredited, This is by reason of the circumstances of this case, the fact that there is no evidence that Legal Aid in fact terminated the pre-existing mandate the applicant held to render legal services to the Kwalindile, nor any evidence that Legal Aid informed the applicant that even if it obtained accreditation it could not charge for work already performed, despite payment not being due owing or payable unless accreditation occurred.

98. However, there is a process in terms of which fees and disbursements are to be first assessed by or on behalf of Legal Aid and if requested by Legal Aid to be submitted for taxation to an external costs-consultant or a professional body. That process has not occurred and therefore any order must take this into account.

99. The applicant sought ordinary costs against Legal Aid while Legal Aid sought a punitive costs order if successful. In line with case law, the applicant is entitled, if successful to its costs against an organ of State.

ORDER

100. The following order is made:

1. The first respondent is ordered to pay to the first applicant such fees and disbursements as are assessed by the first respondent or duly taxed in accordance with its procedures in respect of work done and disbursements incurred in representing the Kwalindile Community during the period from 1 January 2022 to 8 September 2023 and claimed in statements of fees sent on 8 September 2022, 19 April 2023, 31 May 2023 and 12 September 2023

2. The assessments or taxation shall be completed, and payment made in terms thereof by the first respondent to the first applicant by no later than 4 May 2024 of the amount so assessed or taxed without prejudice to the first applicant’s right to challenge the correctness thereof

3. The first respondent shall pay to the first applicant the party and party costs of the application

_____________

SPILG, J

DATE OF JUDGMENT:

4 March 2024

FOR APPLICANTS

Adv CM Nqala

M Magigaba Inc Attorneys

FOR 1st and 2nd RESPONDENTS Mr MS Sekgota

Legal Aid SA

[1] Midlands North at para 35. In Florence v Government of the Republic of South Africa 2014 (10) BCLR 1137 (CC) at para 22 the minority judgment of van der Westhuizen J noted that in relation to the Supreme Court of Appeal decision not to award costs: Ultimately, however, section 29(4) of the Restitution Act meant that the Land Claims Commission was responsible for the costs of the litigation.”

[1] Midlands North at para 35. In Florence v Government of the Republic of South Africa

2014 (10) BCLR 1137 (CC) at para 22 the minority judgment of van der Westhuizen J noted that in relation to the Supreme Court of Appeal decision not to award costs:

Ultimately, however, section 29(4) of the Restitution Act meant that the Land Claims Commission was responsible for the costs of the litigation.”

[2] Midlands North at para 33

[3] In the course of the judgment Mpshe AJ relied on cases such as Nkuzi Development Association v Government of The Republic of South Africa & Another 2002 (2) SA 733 LCC , Legal Aid Board v Pretorius & Another 2007 (1) ALL SA 458 (SCA) and Legal Aid Board v S 2010 (12) BCLR 1285 (SCA)

[4] The expert was Prof Mayende a key witness for the Kwalindile

[5][5] See FA para 27 read with AA para 21r

[6] FA para 40 read with AA para 27

[7] FA para 8 read with AA para 15;

[8] AA para 21

[9] The concern expressed by Mbhense in para 27 of the AA is not only unwarranted but is not reasonable. The court’s concern was that it would not release legal representatives at the eleventh hour during the course of a lengthy on-going trial in which the evidence was about to be completed and that if it had any recourse, it was not art the expense of the court but it was at liberty to exercise such legal rights as it may have and otherwise get its house in order.

[10] AA para 23

[11] AA para 25

[12] AA paras 40 and 41.3

[13] Plascon-Evans Paints Ltd v Van Riebeeck Paints (Pty) Ltd 1984 (3) SA 623 (A) at 634E - 635C

[14] Benefit Cycle Works v Atmore 1927 TPD 524 at 530-1. In York Timbers Ltd v Minister of Water Affairs & Forestry 2003 (4) SA 477 (T) at 497I to 498C , Southwood J applied the test as qualified in McWilliams v First Consolidated Holdings (Pty) Ltd 1982 (2) SA 1 (A) at 10E - H to motion proceedings