Suspended National Lotteries Commission (NLC) secretary Nompumelelo Nene has lost a court bid to block a disciplinary hearing involving allegations of corruption from proceeding.
The court criticised both Nene and her attorneys for bringing a matter “so devoid of substance” she was slapped with a punitive costs order.
Nene is one of several senior members of the NLC who were implicated by the Special Investigating Unit (SIU) and Hawks in allegations of corruption and fraud. They were all suspended with full pay in 2022. The SIU told parliament in 2023 it was investigating lottery tenders worth more than R1.4bn involving senior members of the NLC.
Nene, who was implicated by the auditor-general, was accused of misconduct in relation to unauthorised expenditure.
In late 2023, while she was still suspended, the NLC informed Nene that disciplinary proceedings would begin in early 2024.
Nene urgently applied for a high court interdict to stop this from happening in March. She told Johannesburg high court judge Stuart Wilson that proceedings would be “unfair” and she would face financial hardship.
However, Wilson dismissed the case on the day of the urgent hearing in March. He said there was “no such support” for her “apprehensions” and “no basis” to claim the proceedings would be unfair.
He criticised Nene’s attorneys, who “did not appear” and who allowed Nene to make “hyperbolic claims” so that the matter got into urgent court. When an attorney does this, he said, he or she “misconducts themselves”. It even led to Nene’s advocate on the day having to withdraw.
Wilson demanded an explanation and wanted to know who should foot the bill. He, therefore, postponed his costs order, ordering Nene and her attorneys to explain what happened and who should pay.
On Monday, Wilson ruled that despite veering close to warranting “censure”, Nene’s attorneys — who acted pro bono — would not be saddled with the bill. Instead, it was Nene herself — an admitted advocate and corporate lawyer — who would pay at a punitive scale.
“The failure to set out even the slenderest cause of action naturally raises questions about whether Ms Nene was competently and ethically advised,” Wilson wrote in his latest ruling.
The NLC initially asked Wilson to order that Nene’s attorneys, from Buthelezi Vilakazi Inc, be ordered to pay out of the firm’s own pocket (known as costs de bonis propriis).
“The effect of such an order is that the unsuccessful litigant, in this case Ms Nene, is relieved from the obligation to pay the successful litigant’s costs, which must be paid instead by the unsuccessful litigant’s attorney,” Wilson noted. On the face of it, “many of the prerequisites” for that order existed.
“It was not just that a bad case had been made out in her founding affidavit,” Wilson said. “No legally recognisable case had been identified at all. No reasonable legal practitioner would have permitted Ms Nene’s affidavit to be placed before a court.” Nene should have been counselled against bringing such a case. The “least” an attorney can do is “attend court” to help the client.
However, it turned out Nene herself drafted her court papers and the firm had taken her case pro bono. Her attorneys had also sent a candidate attorney while they had to attend a conference on the day of the hearing. Despite this, Wilson said such “conduct fell short” of what is expected of attorneys.
However, the NLC, upon learning the matter was done pro bono, withdrew their costs request.
But Wilson said this does not “mitigate” the conduct. “Pro bono litigation generally demands more, not less,” he said, as poorer clients usually are less familiar with court procedure. Prior to being a judge, Wilson was a well-known pro bono and human rights advocate and attorney.
However, because Nene is herself an experienced lawyer, it fell to her. “Nene’s lack of detachment from her claim meant that she could not face up its shortcomings,” Wilson ruled. “She ought to bear the consequences of pressing that case to its inevitable conclusion.”
He ordered that she pay all the legal costs on a punitive scale, dismissing the case entirely.
As a result of the high court dismissing Nene’s urgent bid, disciplinary and other proceedings can continue.
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