10 August 2023
Illustration: Lisa Nelson
Judge Roland Sutherland, Deputy Judge President of Gauteng, says he is reporting “disgraceful” conduct by the State Attorney to the Minister of Justice.
The matter before him was an “outrageous” attempt by the Gauteng MEC of Transport and Road Infrastructure to rescind an order (granted in August 2021) that the MEC was 100% liable for proven costs in a multi-million rand damages claim by Michael Halstead, an advocate severely injured in a car accident.
The order had been made by default, in the absence of any representative from the State Attorney’s office, which also did not file any notice of opposition or plea giving an indication of what the MEC’s defence would be.
Faced with expert evidence as to the condition of the road, the judge granted the order.
Almost two years later, the MEC attempted to rescind the order.
But Judge Sutherland was having none of it.
“There is no merit in this application and it is all the more disgraceful that it is the public interest that is prejudiced by the neglect … The people of South Africa are ill-served by public servants who, in spending other people’s money, do not take proper care of how to deal with their responsibilities.
“Such people who are responsible for this degree of dereliction ought not to be in office,” he said.
“Notwithstanding my instincts to protect the public purse from inappropriate expenditure, the legal principles, as I understand them, do not confer on me the powers of Father Christmas. I cannot rescue the un-rescuable.”
Judge Sutherland described the matter as a “truly awful case”.
He said Halstead’s lawyers had correctly given three week’s notice to the State Attorney and the MEC of the application for default judgment, and in this regard they had “behaved perfectly appropriately”.
While an affidavit in support of the rescission application had been filed, it was bereft of any proper explanation as to why the State Attorney had done nothing in the matter.
While mention was made of the Covid pandemic, which had “paralysed” the office of the State Attorney at the time, Judge Sutherland said that the court and hundreds of firms of attorneys had continued to operate, albeit under very difficult circumstances.
What was also “glaringly” omitted from the affidavit was any defence to the allegation of negligence.
“It is common cause that an inspection was sought of the spot where the collision took place. Whether that, in fact, took place, and what followed from it, I have been told nothing.
“The disgraceful way in which this matter has been conducted by the State Attorney warrants investigation and I shall be causing a report to be made to the Minister of Justice how this case has … been conducted,” Judge Sutherland said.
He dismissed the application and ordered the MEC to pay the costs on a punitive scale.
This is not the first example of the lackadaisical attitude of the State Attorney in the damages claim.
In May this year, Johannesburg Acting Judge Johannes Strijdom, in a matter in which Halstead successfully sought R6.8 million for past medical expenses and loss of earnings, noted that the State Attorney had asked for a postponement “to consult with client”.
Judge Strijdom refused this, saying it was a delaying tactic and proceeded with the matter without hearing submissions from the MEC.
Halstead was injured in the single-vehicle accident on 4 April 2019 on the road between Diepsloot and Heronsbridge College. In his claim, he said this was due to “road building” and negligence of the MEC.
He was found trapped in the driver’s seat after his vehicle collided with a tree. He was in a coma.
Expert reports before Judge Strijdom said he had suffered a severe brain injury and was unable to continue to practice as an advocate.