BRINK'S INTERDICT APPLICATION AGAINST LEGAL AID SA
2016-17
1. Background
2. Pillay J's gross mishandling of the case
3. Vahed J's condemnation of this
4. Brink's application papers, argument, and the decision
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1. Background
Brink brought an unfair discrimination action against Legal Aid SA ('LASA') in 2011 and lost it -- correctly as it turned out, because years later a document forced out of LASA after the trial by litigating for it under the Promotion of Access to Information Act ('PAIA') revealed that he'd sued on the wrong cause of action. The problem wasn't unfair discrimination, it was just everyday jobs-for-pals recruitment corruption: LASA Board chairperson Mlambo JP just wanted his pal in the top post for which Brink had been duly recommended by the selection panel, as it disqualified and rejected Mlambo JP's pal for not meeting the basic qualifying criteria for the job, even though as an attorney he'd been a repeatedly appointed acting judge of the Labour Court in which Mlambo JP had also served.
The trial judge refused Brink's application for leave to appeal, detailing all the judge's many basic reversible errors, such as fatally misallocating the final burden of proof in the case, just for starters, which the judge himslef conceded, refusing the application nonetheless. So Brink petitioned the Labour Appeal Court for leave to appeal, duly filing and serving his papers within the 10 days prescribed by the Labour Court rules.
These rules imposed an equal time limit to oppose the petition, but LASA didn't bother complying, and opposed way out of time. Brink objected and required LASA to explain this non-compliance in an application for condonation.
In its application, LASA told the Labour Appeal Court a profusion of lies under oath, the main one being that when its staff closed shop and went off for the Christmas holidays they weren't aware that Brink had petitioned.
Before Brink could file his answering affidavit within the tine allowed, putting up records objectively proving that LASA's explanation for coming to court late was perjured, his petition was dismissed -- grossly irregularly, obviously, in that LASA's opposing affidavit hadn't been properly before the court, since LASA's condonation application hadn't been ripe for decision, much less decided. (Indeed, the dismissal order made no reference to it.) So the petition itself wasn't ripe for decision. In a word, the prejudicially premature determination of the case was unlawful.
The dismissal order named Waglay JP and Davis and Sutherland JJA as the three judges who rejected the petition. Since it was inconceivable that Davis and Sutherland JJA would knowingly have been party to such a gross procedural irregularity, and could have found the petition meritless given the utter mess the trial judge's judgment was on so many levels, Brink launched an investigation of the circumstances in which his petition had been thrown in the can.
A search of the court file for any record that Davis and Sutherland JJA had concurred in Waglay JP's decision established that there wasn't any. Since all duly made judicial decisions are recorded, except in the rarest circumstances, like when a judge grants an urgent order over the phone at midnight, there's obviously no way these two judges could have considered and rejected the petition and not left any written trace of this.
The search stunningly turned up an anonymously written, unsigned, undated, unstamped 'memorandum' denigrating Brink, lying about the issues at trial, and lying about the issues raised in his petition -- all suborning Waglay JP to toss the case. (This 'memorandum' is the basis of Brink's subsequently filed complaint against Waglay JP to the Judicial Service Commission ('JSC')).
Further investigation turned up more documentary evidence that the case had been corruptly disposed of, all of which Brink described and annexed to his papers in an application (papers linked in Part 4 below) he made to the High Court in September 2016 to interdict the taxation of LASA's bill of costs in his labour case.
2. Pillay J's gross mishandling of the case
Being occupied at the time as an acting magistrate in a distant court, Brink engaged an attorney to appear for him. The case came before Daya Pillay J, previously a Labour Court judge. The attorney reported by email how it went: 'I regret to advise that the application was dismissed on the grounds of lack of urgency.' For present purposes, it's not relevant to enumerate and refute the judge's many incorrect dicta in this regard quoted by the attorney in his report (linked in Part 4 below), which ensuing developments confirmed indeed to have been very mistaken.
The thing is this: 'The matter did not then proceed to the merits.' In lay terms, this means that because she rejected Brink's case for a semi-urgent hearing on abridged timeframes as to notice, Pillay J didn't go on to duly assess and determine the validity of Brink's extremely serious allegations about the corrupt disposal of his petition in light of the stack of documents he adduced in support of them. But in fact she didn't simply toss the case for lack of urgency, in her view, and leave it there. Without entertaining any debate of the merits of the matter, without properly evaluating the evidence before her, she indeed proceeded to conclude that the case was manifestly devoid of merit, outrageously false, and a baseless attack on the dignity and integrity of the court, for which Brink should be punished.
Any open-minded and impartial judge would have been mortified by Brink's allegations and the thicket of supporting documents on which he based them, evincing the most serious imaginable judicial corruption at the top of the court in which Pillay J used to serve, and showing that her former colleague there, Waglay JP, had corruptly thrown Brink's case, strangely hurriedly too before all the prescribed papers were in, and that he'd then fraudulently covered this up by instructing his registrar to issue a fake order dismissing the petition, falsely implicating Davis and Sutherland JJA on the way. But Pillay J wasn't concerned in the least about this objectively proven judicial corruption on Waglay JP's part. Confronted by the conclusive documentary evidence of it, she rejected it out of hand. Not only that, she gunned down the messenger reporting it to her.
As the attorney reported afterwards: Had there been 'any merit to your claim that judges of the LAC [Davis and Sutherland JJA] were being paraded [sic: cited?] fraudulently [in the dismissal order], she [Pillay J] had no doubt that the officials of the court would have acted without hesitation.' Which is to say, to Pillay J's learned legal mind, to Pillay J's particular style of judicial reasoning, the fact that 'the officials of the court' didn't 'act... without hesitation' ipso facto told her that everything was just fine: the petition must have been duly considered and rejected by the said three appeal judges on the date and at the place alleged in the dismissal order. And never mind the documents Brink had put up categorically showing otherwise.
She 'said that as an officer of the court you should have known of your rights and the appropriate channels of communication in a matter of fraud was to report the matter to the police.' In other words, instead of exercising his constitutionally entrenched right guaranteed by section 34 of the Constitution to seek the court's adjudication of the legal dispute in question, concerning the integrity of the disposal of his petition in the Labour Appeal Court, and instead of coming to court with a whole stack of supporting documents proving it had been corrupt, Brink should simply have scooted over to his local constabulary to complain about this, and then hung around for however long it took for a detective to investigate it and a public prosecutor to decide what to do about it, even as LASA proceeded to tax its bill, execute on it, and strip Brink of every last dime, on the basis that the petition had been duly decided, when it hadn't. It never entered M'Lady's head that a fraud complaint to the police wouldn't have halted the taxation of the bill and the execution of the writ based on it. And that this is why Brink sought interim relief to stop this.
Equally uselessly Pillay J remarked, 'This did not detract from your freedom to report judges to the JSC.' As before, in making this dull and irrelevant point, it didn't occur to Her Ladyship that a complaint to the JSC wouldn't have halted the taxation of LASA's bill and the execution of its writ. And as things turned out, reporting Waglay JP's corruption to the JSC proved to be a complete waste of time. Brink's complaint against him to the JSC -- in preparation when his application was made, and noted in his application papers -- was filed in June 2017, and it still hasn't been decided. [Update]
'She said you ought to be aware of the appropriate style of communication with officers of the court and award them the appropriate (I think the word she used was respect).' The burden of this sanctimonious homily delivered by Pillay J was that no respectful lawyer would have been so unacceptably rude, and that because Brink's extremely serious charges were so bluntly stated they could only have been false. (As if the Constitution and the Judicial Service Commission Act don't contemplate that judges sometimes misconduct themselves so atrociously that they must be kicked off the bench and thrown into the street, if not in prison.)
Even though she heard no argument as to the merits of Brink's closly documented case regarding the judicial corruption he complained off, and did not thereafter duly assess its validity on a proper airing, Pillay J heartily agreed with LASA's claim for 'a special order for costs on the basis of spurious allegations in your affidavit alleging malice on the part of the JP of the Labour Appeal Court.' That is, the judge implicitly agreed with LASA that Brink's allegations against Waglay JP were 'spurious' on their face.
As to the straightforward manner in which Brink complained in his papers that Waglay JP had tossed his petition corruptly and illegally, Brink's attorney reported Pillay J's special punishment for him: 'You had to do such [complain about it] in a way that maintains the integrity and reputation of the institutions. Your style of communication [with the registrar of the Durban Labour Appeal Court] was not professional and deferential to the office of the officials. In the circumstances, she ordered you to pay costs on the attorney and client scale.' That is, for having had the temerity and the effrontery to point out in his correspondence with the Labour Court registrar the egregious judicial corruption that his investigation had turned up, and for repeating this in his application papers, Pillay J slapped Brink with a punitive costs order. (It came to around R150 000 before taxation, but LASA didn't bother taxing its bill and trying to collect.) The whole point of Brink's closely documented application was precisely Waglay JP's male fide disposal of his petition. To Pillay J's way of thinking, presenting such evidence was scurrilous, contemptuous and damnable.
3. Vahed J's condemnation of Pillay J's gross mishandling of the case
Shortly after Pillay J dismissed Brink's interdict case and high on its win, confident that it had the judges in tow, LASA tried shutting down Brink's ongoing investigation of the massive criminal and other corruption that he'd encountered in LASA's governing and management ranks with an application to interdict him from requesting and accessing any more of its records under PAIA and from suing to compel their delivery when illegally and unconstitutionally refused -- even where they'd been expressly pledged in a settlement agreement signed at court upon capitulating to Brink's earlier PAIA litigation, but withheld in contemptuous breach of the surrender treaty.
LASA's case that Brink was a 'vexatious litigant' was based inter alia on Pillay J's punitive dismissal of his taxation interdict application.
LASA's vexatious case was heard by Rashied Vahed J about a year after Brink's interdict application was dismissed, and Brink appeared in person to oppose it.
In an exemplary demonstration of how intelligent, diligent and careful judges true to their judicial oaths are supposed to behave, Vahed J found LASA's case to be such obvious factual and legal junk that he threw it out with the garbage, without even needing Brink to argue against it after LASA's counsel had completed his hopeless and pathetic argument.
One of the bricks of LASA's vexatious case was Pillay J's punitive dismissal of Brink's taxation interdict case, illustrating, it alleged, that Brink kept harrassing LASA with bum claims. But when LASA's counsel raised and sought to rely on this during argument, Vahed J took him sharply to task.
After mentioning that he'd drawn the case file from the court archives and studied the papers, Vahed J stated with some energy that LASA had unjustifiably and wrongly sought punitive costs against Brink, and that Pillay J had equally wrongly condemned Brink in punitive costs as she did, because if she wasn't persuaded by Brink's case for a semi-urgent hearing and interim relief and wasn't satisfied with short service on the respondents (preceded by emailed informal service to afford maximum possible notice, so no actual prejudice sufffered), she should merely have removed the application from the roll and not dismissed it, seeing as there was no debate and due adjudication of the merits.
With the same vigour, Vahed J made the further point that Pillay J shouldn't have punished Brink with a special costs order.
After anxiously conferring between themselves and seeking instructions from LASA's attorney present, LASA's befuddled senior and junior counsel had no answer to offer to Vahed J's stern rebukes over the clear injustice that LASA had urged Pillay J to commit in kicking Brink out of court like a rabid stray dog. Which is to say, LASA implictly conceded that it had wrongly moved Pillay J to oppress Brink as she did. Vindictively too, to slap him down for complaining about her former judicial colleague Waglay JP's corruption, and practically defend and cover for him.
Although Vahed J expressed no view about this, he appeared palpably concerned by the shocking facts averred in Brink's taxation interdict case and by the supporting documents he'd presented in support of it. Unlike Pillay J, Vahed J clearly didn't think Brink's case a professionally disgraceful and baseless attack on the integrity of the judiciary, because had he gone along with LASA's argument and agreed that Pillay J's punitive rejection of Brink's interdict application showed that he was a vexatious litigant given to making one spurious legal claim after another, outrageously impeaching the integrity of the judiciary in doing so, he'd have said so. He didn't. Quite the contrary, Vahed J rounded on LASA's counsel over Pillay J's very incorrect, improper and unjust disposal of Brink's case at LASA's instance, and her summary dismissal of the extremely serious, documented allegations of judicial corruption on which it was founded, on the basis that they were outrageously 'spurious', as LASA had successfully contended.
As Brink detailed in his taxation interdict case, the root of the corruption in the Labour Appeal Court in his case was LASA's (almost certainly then-Board chairperson Mlambo JP's) criminal perversion by dint of that above-mentioned 'memorandum' of the due decision of Brink's petition for leave to appeal the dismissal of his labour action. In other words, with Mlambo JP in charge, LASA was capable of any extreme criminality, even defeating the ends of justice by importuning a judge behind the scenes.
Opposing LASA's vexatious application, Brink comprehensively canvassed this pervasive criminal and other corruption at LASA in his extensive answering affidavit, with its thicket of supporting annexures. Recording that he'd carefully examined this evidence, Vahed J stated in court that he'd spent a week studying the papers in the case. The hard evidence Brink had presented in his answering papers of boundless, untrammeled criminality in LASA's top ranks under Mlambo JP's leadership evidently registered on Vahed J, because he had no difficulty appreciating that LASA's pleaded defence against Brink's labour claim had been a fraud on the court, just as Brink proved in his answering affidavit opposing LASA's vexatious case, and that LASA's single witness, National Operations Executive Brian Nair, had perjured himself on the witness stand repeatedly, just as Brink had irrefragibly demonstrated in that affidavit. Why, Vahed J very knowingly observed from the bench: 'All trial lawyers know that cases are won by perjury sometimes.'
4. Brink's application papers, argument, and the decision
Notice of motion, founding affidavit (signed lo res) and annexures
Notes for argument prepared by Brink for the attorney he instructed to argue (LASA's opposing case was refuted in these notes)
Application dismissed
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