A case before the Eastern Cape High Court, in which it had emerged that an attorney allegedly wrote a judgment on behalf of a magistrate to favour her clients, was described by a judge as “unprecedented in the annals of the judiciary in the country”.

This followed an application by the SA Legal Practice Council, in which it asked the court that the name of attorney Zoleka Ponoane be struck from the roll of legal practitioners due to misconduct.

The misconduct complained of occurred in the regional magistrate’s court at Sterkspruit, during 2012. Ponoane represented various plaintiffs in an action against the minister of police, based on alleged assaults, unlawful arrests and detentions by the police. 

The six plaintiffs were all represented by Ponoane as their attorney of record. After hearing evidence in the matter, the magistrate reserved his judgment. 

He subsequently prepared a draft judgment which was four pages long. He sent the unsigned draft judgment to Ponoane. Shortly after she received the draft judgment she discussed it telephonically with the magistrate.  

It is alleged that during this conversation an agreement was reached that Ponoane would rewrite the draft judgment. It was neither sent to the minister’s attorney nor was he informed of her involvement in rewriting the draft.  

It is said that Ponoane sent the amended judgment, which was 10 pages long, back to the magistrate. In a statement made later to the police the magistrate stated that he considered the ten page judgment to be the “final, official judgment”.  

The magistrate then signed the  judgment and sent it to Ponoane. The minister’s attorney collected a copy of the judgment in the court file from the clerk of the court.  In the “final” judgment, Ponoane was awarded damages to be paid by the minister to her clients, and a costs order was granted in her favour.

As costs to be paid had at that stage not yet been argued before the magistrate, the minister’s legal team suspected that there had been a gross irregularity or misconduct in the writing of the judgment.  

A criminal case on a charge of corruption was opened against the magistrate by the police, but he had meanwhile died. The minister’s legal team earlier obtained an order that the matter had to be heard afresh and that the judgment by the magistrate had to be overturned.

Ponoane, throughout, denied any wrongdoing or misconduct. Her version of events is that the magistrate at the time sent her the “draft” judgment. She said she questioned why the judgment was of such poor quality. Embarrassed, the magistrate requested a precedent so that the judgment could be restructured.

Having discussed the judgment received informally, including its structure and the defective order issued, the magistrate asked her to provide him with an example of the way in which it should be done, which she did, Ponoane explained. The court, however, rejected this explanation.

Judge Avinash Govindjee, who dealt with the LPC’s application, commented that although the incident arose many years ago, and despite the respondent continuing to practise since that time without blemish, it cannot be said that there is genuine remorse which counts in her favour.

“The various attempts to gloss over her actions, including the persistent denial of wrongdoing during both the review application and disciplinary proceedings are indicative of someone who experiences regret, not genuine remorse,” he said in ordering her name to be struck from the roll.

zelda.venter@inl.co.za

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