Pretoria - An attorney who heeded the calling of becoming a sangoma while representing a community in a land claims case escaped an order that he had to pay for the delays in the case out of his own pocket.
A judge sitting in the Land Claims Court in Randburg in an earlier judgment accepted the attorney’s explanation that he had to choose between being an attorney and an isangoma. The court also found that a lack of funding caused the delays.
The issue before the court was whether attorney Sipho Mkhize’s withdrawal from the case earlier this year warranted a de bonis propriis cost order (from his own pocket) against him. This was after the case had dragged on for nearly 16 years.
In his explanation for withdrawing after all these years, Mkhize said that he withdrew as attorney of record because he was sick since his ancestors wanted him to get out of this case and take up the ancestral calling to become an isangoma.
He did not immediately withdraw because he was still pleading with his ancestors to allow him to proceed with his work as an attorney and he offered a cow for that purpose.
But, he told the court that all was in vain and he was eventually forced to withdraw. Mkhize stated that his life belief is rooted in indigenous African tradition and custom and as a result he sought advice about his sickness and was advised to fulfil the calling of becoming an isangoma.
This matter has a long history. In September 1998, Nkosiyezwe Prince Gcumisa, the Inkosi of the Gcumisa tribe in the New Hanover District, KwaZulu-Natal, lodged a land claim on behalf of the Gcumisa community.
The claim was investigated by the Regional Land Claims commissioner and subsequently published in the Government Gazette. In September 2006 the commissioner referred the claim to court for adjudication.
A year later Mkhize filed a notice to participate on behalf of the Gcumisa community. From September 2007 till July 20 this year, Mkhize was on record as the attorney for the claimants. He participated in all proceedings including pre-trial conferences at which trial dates were arranged.
A law firm which was also involved in the matter blamed Mkhize for the delays in the case. This was after Mkhize in July this year withdrew as the attorney for the claimants. In his withdrawal letter, Mkhize did not provide reasons for the withdrawal.
Judge Thomas Ncube subsequently issued a directive to Mkhize to provide a written explanation and appear in person in court, to explain why he withdrew as attorney of record after the matter had been set down for hearing and without giving reasons.
The court had to determine whether Mkhize should be held personally responsible for all the delays and consequently be ordered to pay costs de bonis propriis.
But Judge Ncube said in the absence of evidence disputing Mkhize’s explanation, he was bound to accept it as being reasonable.
Pretoria News