GOVERNMENT has been accused of using fresh court proceedings to avoid paying legal costs owed to Manene Gibson Gamedze since 2014.
This is despite having lost an earlier challenge against the taxation of the bill and allegedly making several undertakings to settle the debt.
The accusation is contained in an answering affidavit filed by attorney Martin Dlamini, who is opposing an application by the principal secretary in the ministry of public works and transport as well as four other government officials seeking to rescind a High Court order compelling payment. Dlamini argues that the government is attempting to overturn the April 17 order which gives effect to legal costs already awarded and taxed, rather than fulfil its obligation to pay.
He describes the latest application as another attempt to frustrate the enforcement of court decisions, claiming that government has repeatedly failed to honour its payment commitments.
“Government has made undertakings and has not complied. It now seeks to undo the only order that gives effect to the taxed bills,” Dlamini states.
The dispute involves Gamedze and the principal secretary in the ministry of public works and transport, the attorney general, ministry of finance, speaker of the House of Assembly and accountant-general.
According to Dlamini, the original costs arose from an application for leave to raise a special plea under Section 5(1) and (2) of the Government Limitations Act of 1971. He says the court ordered the government to pay costs, which were subsequently taxed.
However, instead of settling the bill, government allegedly challenged the taxation through a review application, which was dismissed with costs. Dlamini says the costs arising from that unsuccessful review were also taxed, leaving government with two outstanding bills.
He further argues that government cannot now use the rescission application to reopen the first taxation after its review challenge failed.
Furthermore, the attorney points out that the second taxed bill has never been taken on review, yet government has allegedly refused to pay it. In his affidavit, he said government has not demonstrated that the second bill was incorrectly taxed or provided a satisfactory explanation for its failure to settle the amount.
The latest legal battle follows an April 17 order which Dlamini says was granted after the parties had discussed an agreement on payment before Justice Titus Mlangeni on April 15.
According to the attorney, the court directed the parties to reduce their agreement into writing and file it before April 17 ahead of the court’s recess.
He claims that his office prepared the document titled ‘Consent to Judgment and Agreement to Pay’, served it on the attorney general’s office and filed it with the court.
Dlamini maintains that government had sufficient notice of the proceedings because it received the notice of filing and the agreement on April 15, two days before the order was granted.
He further alleges that government’s legal representative appeared in court on April 17 and tendered E10 000 towards costs as part of the agreement, despite the applicants’ subsequent claim that the order was improperly obtained.
He therefore rejected allegations that the court was misled into granting the order. Dlamini also takes issue with government’s decision, to launch the rescission application 66 days after the order was granted.
The application is dated June 22 but the attorney says the applicants have not explained when they became aware of the order or why they waited before approaching the court.
He maintains that the applicants have failed to establish that the order was erroneously granted in their absence or provide a reasonable explanation for their alleged default and a bona fide defence with reasonable prospects of success. Dlamini further invokes Section 4 of the Government Liabilities Act, 1964, which he says requires the accountant-general to arrange payment of money awarded against government from public revenue.
He argues that this provision prevents Gamedze from simply executing against government property, leaving him dependant on government to comply with court orders.
The attorney also reveals that government previously offered E23 489.13 in correspondence but has failed to explain why it has not settled the full taxed amounts.
Dlamini argues that government’s conduct undermines respect for court judgments and the rule of law.
“The application by the applicant is in fact not only in disdain or otherwise but a furtherance of their disrespect of the integrity of the court,” reads his affidavit.
Therefore, Dlamini wants the High Court to dismiss the rescission application with punitive costs on the attorney and client scale. Alternatively, he said should the court decide to rescind any portion of the April order, he prayed that it would grant judgment for the second taxed bill, which has not been challenged and direct the accountant-general to pay it within a fixed period. The allegations in the affidavit are still to be tested in court.
