SELEX ES SPA v STATE PROCUREMENT BOARD & ORS 2016 (2) ZLR 639 (S)

Flynote

Legal practitioner: " conduct and ethics " duty " abuse of process " frivolous appeal " costs de bonis propriis may be awarded against practitioner

Practice and procedure: " abuse of process " bringing appeal where there is no reasonable prospect of success

Headnote

While parties and lawyers are entitled to have their day in court, they must exercise that right responsibly with due care and diligence not to abuse court process. It is unethical and an abuse of court process for litigants, and particularly lawyers, to waste the court's valuable time presenting dead, unarguable cases in the vain hope that flogging a dead horse will somehow resurrect the argument to life. Lawyers should not succumb to pressure from their clients at the expense of justice and public interest.

An abuse of court process generally would take place when the court's procedure is used by a litigant for a purpose for which it was neither intended nor designed, to the prejudice or potential prejudice of another party to the proceedings. It may also take place when a litigant institutes proceedings that are obviously unsustainable.

A legal practitioner must not abuse court process. For example, he must not enter an appearance to defend when there is no defence, and must not use court procedures to intimidate the other side or delay matters. He should not file bogus pleadings. Needless to say, he must not deliberately alter court process, for that usually amounts to forgery or fraud. Appeal proceedings were never intended or designed to facilitate a hopeless fishing expedition in the appeal court in the futile hope of catching something in an empty pool. This is for the simple but good reason that the appeal court has no remedy to offer in frivolous and vexatious appeals. Thus, appeals of this nature are simply a waste of time and money for everyone concerned. The courts frown upon that despicable type of conduct which is punishable by an award of costs at the punitive scale. Thus where a legal practitioner institutes or defends appeals with full knowledge that there are absolutely no reasonable prospects of success, he or she might expect to bear the wasted costs occasioned by his or her wrongful conduct de bonis propriis.