ID cases: judge criticises lawyers

2009-03-19 00:00

A high court judge has slammed the conduct of attorneys who deal with applications by people trying to get identity documents, and has referred their conduct to the KZN Law Society.

Judge Malcolm Wallis said in a reserved judgment handed down this week that the way these applications are dealt with suggests that the attorneys’ concern is “with their own remuneration” rather than the interests of their clients.

Wallis referred to their conduct as a “sorry litany of incompetence, slovenliness and disregard of the applicable law”.

He accused attorneys of having a “production line” approach to these applications for the purpose of making money.

He said this was clearly an incentive to “rush into litigation without adequate inquiry and investigation”.

Wallis said affidavits prepared and presented to court in support of these applications for identity documents displayed a “flagrant disregard for truth and accuracy”.

“The problems I have identified are not occasional or incidental so as to be ascribable to inadvertent clerical error. When only a few cases are dealt with emanating from different attorneys, it is easy to overlook these difficulties. However when one is seized with 56 such applications, as I was, and they are carefully perused these deficiencies become glaringly obvious.”

A major criticism is that “standard” forms and affidavits appear to accompany the applications, but attorneys are charging for taking instructions from and consulting with clients in each case.

Wallis said the flood of identity document applications is comparable to the applications for social security grants, in respect of which measures were implemented at his behest last year.

“In the social security cases, I described this as a profitable cottage industry for the legal practitioners concerned. It remains such even though the focus of the cases has shifted. Indeed, if anything, the cottage has grown into something more substantial and all this at the cost of hard-pressed taxpayers who are having to cut their own spending in response to current economic circumstances,” he said.

Wallis said as with the social security cases, attorneys are charging an average of R4 000 to R5 000 for each identity document application.

If one assumed on a “conservative basis” that 10 cases appear on the court’s motion roll daily in Pietermaritzburg and a similar number daily in Durban, there are at least 5 000 cases being heard annually in courts in KZN.

“If orders for costs are made against the state the total bills will be of the order of R20 million to R30 million a year, leaving aside the cost in terms of the state attorney’s office having to attend to these applications and the time and effort of the department’s officials who have to attend to these matters,” the judge said.

Wallis said he bore in mind that the applicants who came to court needing identity documents were often poor and disadvantaged people who “may well have been the victims of an unsympathetic bureaucracy”.

But he said the fact that their true circumstances were not before court arose solely from the “failure, unwillingness or inability of their attorneys to obtain proper instructions and then to prepare a proper set of application papers”.

Wallis said litigation is not necessarily the best way to obtain bureaucratic efficiency.

“A courteous phone call is usually more effective. The overall impression is that it is not the procurement of an identity document that matters, but procuring an order for costs payable from the public purse.”

The judgment also deals with alleged “touting” for business by attorneys and the judge said he found the relationship between the attorneys and agents “troubling”.

At the same time, however, he said it is unacceptable that people — many poor, ill-educated and ill-equipped to deal with a bureaucracy — could not find out by simple resort to the regional offices of Home Affairs what was happening to their identity documents.

The fact that agents and attorneys had been able to create the “cottage industry” of which he spoke was in itself a condemnation of the efficiency of the Home Affairs Department, he added.

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