Judge stops Phathaphatha from continuing with lawyer's trial

The order was issued yesterday. The application was moved on a certificate of urgency by Sipho Simelane who represented Ndlovu. Simelane said the matter was urgent because Ndlovu had been called upon to respond to the charges by close of business yesterday.

In his papers before court, Ndlovu stated that he was instructed by one Doris Fakudze to institute proceedings against one Phineas Shiba where she sought the recovery of the value of three cattle which had been unlawfully taken from her.

The amount sought was E10 000.

He said he was refused access to the court’s file when he sought to find out if judgment had been granted as the matter was allegedly dealt with in chambers in his absence.

The matter was allegedly included on the list of cases which is compiled by the clerks of court in favour of matters wherein judgment had been issued.

Acting on the list, Ndlovu prepared and issued a writ of execution to be issued by the clerk of court which was eventually issued. The clerk of court, Simphiwe Ngwenya called Ndlovu and told him the writ was erroneously issued as the court had not granted any judgment. Ndlovu allegedly wrote to Mdluli and withdrew the writ, further explaining how he got misled.

The judgment was eventually issued last Wednesday in his absence. "When the second respondent delivered his ruling, much to my surprise, he issued an order of absolution front the instance in favour of Shiba," Ndlovu alleged.

Mdluli allegedly stated in his ruling that the applicant’s conduct on the matter was fraudulent, dishonest and unprofessional, when the clerk had stated that it was her mistake to sign the order without making reference to the file.

Ndlovu continued: "The ruling was further couched in hostile language, which was not only insulting to me, but also borders on defamation. I could not have expected such from a holder of an esteemed office such as the second respondent (Mdluli)." The contents of Mdluli’s statements could not be repeated for their alleged defamatory nature.

Mdluli was also accused of having cited Ndlovu as being in contempt of court and he was then expected to respond to the letter, latest by end of business today. "It is clear from the ruling of the second respondent that he has already prejudged the matter and has already found me guilty. All that is left is for him to decide the length of my commitment to gaol," Ndlovu alleged.

Attorney Ndlovu stated in his papers that the manner in which Mdluli had conducted the proceedings suggest partiality on his side and if he we to proceed and be tried by him, he would never receive justice.

Ndlovu went on to submit that Mdluli was fighting his own battles with his office and himself in particular. "At present, I am involved in a matter where I represent Bunye Betfu Buhle Betfu Savings and Credit Society who have a dispute with him arising from certain claims he made from the organisation," Ndlovu further alleged.

It was stated further that the contempt charges were motivated by improper motives, and if not, Mdluli has failed to apply his mind properly to the issues. Ndlovu alleged that Mdluli acted in bad faith and, therefore, asked the court to issue an order of costs against him from his own pocket.

The interim order was granted and Mdluli is yet to show cause why it should not be made final. There was no order as to costs.

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